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THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 42 – ISSUE 10 – NOVEMBER 2020

IN THIS ISSUE

New Asian Australian law group in SA Protest rights during a pandemic Democracy under threat in Hong Kong PLUS

Legal Profession Conduct Commissioner on sexual harassment complaints processes Magistrate Davis gives a primer on the Youth Court

LORE & ORDER: A LEGAL PERSPECTIVE ON CULTURAL RELATIONS

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 42 (10) LSB(SA). ISSN 1038-6777

CONTENTS CULTURAL RELATIONS

REGULAR COLUMNS

Asian Australian Lawyers Association establishes new SA branch By Jessica Teoh & Brian Vuong

44 Pro bono legal assistance for asylum seekers By Phoebe Richards

The right to protest for racial equality during a state of emergency By Chris Charles & Dr Sarah Moulds

FEATURES & NEWS

A vote of thanks for ss 18C & 18D of the Racial Discrimination Act By Dr Matthew Stubbs

25 Genetic testing, life insurance & discrimination By Adam Hamilton & Prof Tania Leiman

50,000 people helped by SA migrant legal education program By Melanie Robinson & Ella Pak Poy

An overview of the Youth Court By Magistrate Luke Davis

35 Providing peer-to-peer mental Security laws undermine democracy in health support Hong Kong By Pauline Wright By Andrew Proebstl

20 Aboriginal Law Studies Program â&#x20AC;&#x201C; A pathway to law school and employment By Danielle Misell

Executive Members President: T White President-Elect: R Sandford Vice President: J Stewart-Rattray Vice President: E Shaw Treasurer: F Bell Immediate Past President: A Nikolovski CREATE PLAN Council Member: S Hooper Council Member: V Gilliland Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich CREATE PLAN F Bell M Mackie M Boyle E Shaw J Marsh C Charles R Piccolo

CREATE PLAN

Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region)

CREATE PLAN

Junior Members N Rossi F Wambeti Ex Officio Members The Hon V Chapman, Prof V Waye, Prof M de Zwart, Prof T Leiman

SAâ&#x20AC;&#x2122;s proposed scheme to monitor places of detention needs improvement By Assoc Prof Laura Grenfell

KEY LAW SOCIET Y CONTACTS Chief Executive Stephen Hodder stephen.hodder@lawsocietysa.asn.au Executive Officer Rosemary Pridmore rosemary.pridmore@lawsocietysa.asn.au Chief Operations Officer Dale Weetman dale.weetman@lawsocietysa.asn.au Member Services Manager Michelle King michelle.king@lawsocietysa.asn.au Director (Ethics and Practice) Rosalind Burke rosalind.burke@lawsocietysa.asn.au Director (Law Claims) Geoff Thomas gthomas@lawguard.com.au Manager (LAF) Annie MacRae annie.macrae@lawsocietysa.asn.au Programme Manager (CPD) Natalie Mackay Natalie.Mackay@lawsocietysa.asn.au Programme Manager (GDLP) Desiree Holland Desiree.Holland@lawsocietysa.asn.au

From the Editor

President's Message

18 From the Conduct Commissioner: sexual harassment in the legal profession the role of complaints processes 22

Risk Watch: Risk Management Resources - Commercial Sale and Purchase Transactions By Grant Feary

Tax Files: No thanks! Effective Disclaimer of a Trust Entitlement By John Tucker

Members on the Move

Family Law Case Notes

Wellbeing & Resilience: Could you be feeling better?

Gazing in the Gazette

THE BULLETIN Editor Michael Esposito bulletin@lawsocietysa.asn.au Editorial Committee A Bradshaw P Wilkinson S Errington T Shueard D Sheldon J Arena G Mottillo B Armstrong D Misell R Scarabotti The Law Society Bulletin is published monthly (except January) by: The Law Society of South Australia, Level 10-11, 178 North Tce, Adelaide Ph: (08) 8229 0200 Fax: (08) 8231 1929 Email: bulletin@lawsocietysa.asn.au All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.

Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions. PUBLISHER/ADVERTISER Boylen Ph: (08) 8233 9433 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Layout: Henry Rivera Advertising Email: sales@boylen.com.au

FROM THE EDITOR

The legal profession should reflect the broader community

IN THIS ISSUE

MICHAEL ESPOSITO, EDITOR

n a recent episode of ABC series Gruen, panellist Todd Sampson made some interesting comments about how the risk-averse nature of Government messaging often fails to connect with people from culturally diverse backgrounds. In a bid to appeal to the broadest audience possible, Mr Sampson opined, the messaging risks alienating those who do not fit the archetypes associated with “middle Australia”. The discussion took place in the context of Government efforts to encourage COVID-safe behaviours. Never has Government communications been as important as it has in 2020, when entire populations need to be persuaded to radically modify their behaviour to prevent the spread of a deadly disease. It is an extraordinarily difficult task, made more challenging by the extremely diverse linguistic make-up of Australian society. As we have seen, all it takes is one person to not heed the message for a community to be put at serious risk. In South Australia, the importance of engaging with culturally diverse communities was evident when Thebarton Senior College was identified as the site of a small cluster. Authorities were able to act quickly to nip the threat in the bud, thanks largely to the cooperation of the community, particularly Afghan community leaders, and prevent what would have potentially turned into a second wave. A prudent lesson in this is that, when trying to capture the collective consciousness, there is no one-size-fits-all approach. You need to tailor the delivery of a message to connect with different groups. It has caused me to think about the

4 THE BULLETIN November 2020

value in a diverse legal profession. It seems self-evident that there is benefit in a legal profession that resembles the broader community. There is no question that the profession is more diverse than it used to be, but is it sufficiently heterogenous? Perhaps looking around your own firm might provide some insight into that question. Just like Government COVID-19 advertisements need to be translated in more than 50 languages to ensure everyone gets the message, encouraging people from different backgrounds to enter the legal profession also requires uniquely targeted and customised approaches. We are seeing a concerted effort with regards to enhancing Indigenous representation in the legal profession, with GDLP scholarships, mentoring initiatives and pathway programs designed to support Aboriginal students to make the transition to career lawyer. Danielle explains in this edition how this important program works. In exciting news, a South Australian Chapter of the Asian Australian Lawyers Association has just been established. One of the organisations’ goals is to promote and facilitate Asian cultural diversity in the senior ranks of the legal profession. In this edition, you will meet the inaugural members of the SA Chapter and learn more about the really valuable objectives of this group. With changes to higher education fees set to make law even more expensive (and therefore potentially more exclusive), it’s more important than ever that we work towards encouraging a profession that reflects the society we live in. B

RACIAL DISCRIMINATION ACT Why it continues to be a valuable law

PREMIUM GENETICS? Genetic testing and the risk of life insurance discrimination

YOUTH JUSTICE Magistrate Davis explains the many facets of the Youth Court

PRESIDENT’S MESSAGE

SA not ready to join Uniform Law scheme yet TIM WHITE, PRESIDENT

he Legal Profession Uniform Law is a regulatory scheme that seeks to establish uniform regulation of the Australian legal profession. It has been operational in NSW and Victoria since July 2015. WA is also due to join it from July 2021. It aims to achieve consistency between its member States, enable legal practice more readily across state and territory boundaries, reduce red tape and enhance consumer protection measures.

WHAT LAWS WOULD APPLY? If SA were to join the scheme, our existing Legal Practitioners Act and Regulations would be replaced by the Uniform Law and the Uniform Rules, with a local Application Act. The Law Council sets the Australian Solicitor Conduct Rules which apply to solicitors under the Uniform Law. The present version of the ASCR has been adopted by the Society and is therefore currently in place in SA. The Uniform Law covers aspects of legal practice such as: • Admission to practice • Legal practice • Business structure and professional conduct • Legal Costs • Dispute resolution and professional discipline • Functions and powers of local authorities The Uniform Rules cover a range of aspects including: • General rules dealing with issuing practising certificates, professional indemnity, legal costs and billing • Admission Rules • Legal Practice rules such as conduct of business, litigation lending • Conduct rules setting out ethical rules for solicitors and barristers

HOW IS THE UNIFORM LAW STRUCTURED? The Legal Services Council (LSC) monitors the overall operation of the Uniform Law framework and is responsible for making the Uniform Rules. It can also issue guidelines and directions about the exercise of functions of the local authorities. Under the Council sits a Commissioner and also an Admissions Committee.

ARE LOCAL ASPECTS OF THE PROFESSION RETAINED? Yes, certain aspects are retained. What can be retained is somewhat open to negotiation with the LSC but local aspects of the profession that may be retained include: • Conduct Commissioner and other regulatory structures • LPEAC • Law Claims and Lawguard • Fidelity Fund • Fused profession • Admissions, issuing of Practising Certificates and training requirements • Professional Indemnity Insurance The way in which many of these locally important roles and functions are retained is through a Local Application Act. Both of these exist in NSW and Victoria so we can see the type of aspects that have been retained locally in the Acts in those states. We are watching closely what functions WA retain and have been in regular contact with the Law Society of WA as the commencement of the Uniform Law approaches.

WHAT HAVE WE DONE TO CONSIDER THE UNIFORM LAW? Our consideration of joining the Uniform Law dates back to 2016 when the LS first commenced considering it more closely. At that stage various working groups were formed to consider its benefits and weaknesses for the profession. Given the somewhat recent changes to the Legal Practitioners Act 1981 in 2014, Council recommended not advancing joining the Uniform Law at that point in time. It was agreed though to keep a watching brief on developments in the Uniform Law states and scheme going forward. Over the years since then there have been ongoing communications and consultations between the Society and the LSC. Earlier this year I wanted the Society to revisit the suitability of the Uniform Law for our profession, so again we recommenced the necessary steps to commence looking at the scheme in detail. That large project has occurred throughout this year. It has included forming three Council Working Groups

which were established to consider in more detail different aspects of the Uniform Law. The working groups considered separately aspects dealing with: • Cost disclosure and adjudication • Business structures • Disciplinary reporting and complaints processes This scheme has been considered several times throughout the year by Council, Executive and Ethics and Practice Committee. Recently based on the reports from the three Working Groups and other investigations performed a formal resolution was agreed by Council on whether to recommend SA join the Uniform Scheme or not.

WHAT IS THE OVERALL RECOMMENDATION OF COUNCIL? The current recommendation is that we not seek to progress joining the Uniform Law at this point. There are a variety of reasons for reaching that conclusion. Firstly, there are several aspects of the Uniform Law that remain concerning particularly relating to cost disclosure to clients and other cost related aspects. Secondly with the commencement of both the Uniform Civil Rules and CourtSA this year, another significant change to the way we practice would most likely not be beneficial for practitioners. Further given the challenges we have all faced this year, delaying introducing a new scheme is sensible. Lastly the commencement of the Uniform Law has been delayed in WA by about 12 months due to COVID-19. As a result, we have not been able to assess what aspects of the Uniform Law they have retained or changed. So, at the moment whilst not advocating for the introduction of Uniform Law in SA, the Society will continue to engage with WA to learn and assess their version of this scheme and also remain in contact with the LSC. Ultimately whether SA joins the Uniform Law or not is a decision for the Attorney-General, but we will continue to communicate with her indicating the Society’s views in relation to this important issue that affects the manner in which we all practise. B November 2020 THE BULLETIN

CULTURAL DIVERSITY

Asian Australian Lawyers Association establishes new SA branch JESSICA TEOH, DIRECTOR, LAITY MORROW; AND BRIAN VUONG, DIRECTOR, KAIN LAWYERS ASIAN AUSTRALIAN LAWYERS ASSOCIATION – A NEW SA BRANCH

n 1 October 2020, a new State branch for the Asian Australian Lawyers Association (AALA) was established in South Australia, one that we are pleased to be a part of. AALA was established in 2013 with the goal of promoting diversity in the legal profession through a range of mentoring, networking, professional development and education initiatives. With the recent establishment of the SA Branch, AALA now has branches in SA, ACT (also established on 1 October), WA, Victoria, Qld and NSW, cementing its place as a national organisation. Jessica Teoh, a Director at Laity Morrow, is President of the inaugural SA Branch and Brian Vuong, a Director at Kain Lawyers, is Secretary of the inaugural SA Branch. We decided to be part of forming the new SA Branch because: • while society in Australia comprises a wide range of cultural backgrounds, to date, we have not had many opportunities to deal with other Asian Australians within the legal profession, particularly in SA; • we think a more diverse workplace fosters new and different ways of thinking, which ultimately contributes to the culture of the firm and can more thoughtfully service clients of equally diverse backgrounds; • we see immense value in establishing a network of Asian Australian lawyers (and others interested in cultural diversity) to support each other, and a mentoring program to help Asian Australian law students and junior lawyers would help increase cultural diversity within the legal profession; and

6 THE BULLETIN November 2020

President of the SA Branch of AALA Jessica Teoh and Secretary Brian Vuong.

• we are fortunate to be in a position where we can contribute back to society and help promote cultural diversity within the legal profession. Seeing what AALA has managed to achieve so far, including the reach it has had across Australia (AALA’s members hail from more than 10 countries in Asia, between them speak almost 20 different Asian languages and dialects and include, lawyers and principals from small, medium and large firms, barristers, in-house and government lawyers)1, we wanted to be part of AALA’s push to be a national organisation and establish the SA branch. Already, we have seen the benefits of being part of AALA, including meeting other lawyers from a wide range of culturally diverse backgrounds, both locally and interstate. We recently attended (remotely!) AALA’s first National Cultural Diversity Summit and heard from a wide range of speakers, including former High Court judge, The Hon Michael Kirby AC CMG and Chief Justice Tani Gorre

Cantil-Sakauye, the first Asian-Filipina American and the second woman to serve as California’s chief justice.2 The other AALA State and Territory branches have already made significant contributions to promoting cultural diversity in the legal profession and we are aiming to do the same with establishing the SA branch. We intend, as our immediate next steps, to establish a network of Asian Australian lawyers and a mentoring program in South Australia. To do this, we are hoping to increase AALA membership in South Australia and encourage anyone interested in promoting cultural diversity to contact us and become a member of AALA. For those who are keen to join AALA or want more information, please visit www.aala.org.au, and we can be contacted at sa@aala.org.au. B Endnotes 1 http://aala.org.au/page-18087 2 https://www.courts.ca.gov/13338.htm

A roundup of recent Society meetings & conferences ROSEMARY PRIDMORE, EXECUTIVE OFFICER 22 JULY 2020, 22 OCTOBER 2020 CAA Respectful Behaviours Working Group he President, Tim White, PresidentElect, Bec Sandford and Director of Ethics and Practice, Rosalind Burke attended meetings of a Respectful Behaviours Working Group chaired by Acting Chief Justice Kelly/Chief Justice Kourakis. The Working Group is considering a range of options aimed at addressing the issue of sexual harassment in the legal profession.

12 AUGUST 2020 Medico-Legal Advisory Group Meeting Tim White, Guy Biddle (CoChair of the Accident Compensation Committee), Tim Bourne, Rosemary Pridmore (Executive Officer) and Carlee Smyth (Acting Manager of the Litigation Assistance Fund) represented the Society at a meeting of the Medico-Legal Advisory Group held by videoconference.

The President of the AMA(SA), Dr Chris Moy and the CEO, Dr Samantha Mead participated for the AMA. Matters discussed included the implications for doctors of the new Uniform Civil Rules relating to medical expert reports; a commitment by Return to Work SA to copy lawyers in on any communications to doctors relating to Permanent Impairment Assessment reports on a client; and that Return to Work SA may not pressure doctors to change a report.

27 AUGUST 2020 CAA COVID-19 Focus Session â&#x20AC;&#x201C; Civil A Focus Group was convened by the CAA to consider how the courts can maximise the benefits delivered through its response to COVID-19, while also understanding any negative impacts that may have unintentionally occurred. The Society was represented at the meeting by Tim White, Bec Sandford (PresidentElect) and Alexander Lazarevich (Chair of the Civil Litigation Committee).

4, 5 SEPTEMBER 2020 Meetings of Law Society Presidents, Chief Executives of Constituent Bodies of the Law Council of Australia (LCA); Chief Executives of Law Societies; the Conference of Law Societies; and Directors of the LCA Tim White (as President and also as Society appointed Director of the LCA) and Stephen Hodder variously participated in the above quarterly meetings, which were held via videoconference. Key topics of discussion included the ongoing work to eliminate sexual harassment in the legal profession; COVID-19 issues including the work the pandemic imposed on Law Societies, concerns relating to prisons and courts and the desirability of some court changes being implemented on a permanent basis; a Best Practice Guide for Legal Practitioners in relation to Elder Financial Abuse (which was adopted); and a proposal for a Judicial Code of Conduct. B

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FEATURE

THE RIGHT TO PROTEST FOR RACIAL EQUALITY DURING A STATE OF EMERGENCY: FUNDAMENTAL FREEDOM OR SACRIFICIAL LAMB? CHRIS CHARLES AND DR SARAH MOULDS, MEMBERS OF THE HUMAN RIGHTS COMMITTEE

s 2020 creeps to an end, it is distressing to think of the millions of families grieving for loved ones lost too early. It is not just the pandemic that has fuelled this avalanche of grief and loss, but also the tragedy of hundreds of black deaths in custody around the world and here at home. The words ‘I can’t breathe, please! Let me up, please! I can’t breathe! I can’t breathe!’ resonate beyond national borders, precisely because they have not just been uttered on the streets of New York. These are the words of a 26-year-old Dunghutti man who died in a prison in south-eastern Sydney in 2016 after being restrained by five officers, the same year an Aboriginal man died in South Australia after being pulled unresponsive from a prison van at Yatala Labour prison. These words bring shame on all Australians, particularly those of us with the resources and capacity to raise our voice or take to the streets to affect change. But do we – or should we - have a right to protest for racial equality in the middle of a health pandemic? What limits can or should be placed on our democratic freedoms to protect the health of our community? These are the questions police and protesters have been grappling with in 2020 in the context of the Black Lives Matter and Stop First Nations Deaths in Custody protests across Australia. This article offers a historical snapshot of the right to protest in South Australia, and how the COVID-19 experience might reshape our thinking when it comes to this form of democratic expression.

8 THE BULLETIN November 2020

While there is no constitutionally enshrined right to protest or freedom of speech within the Australian Constitution, the High Court has made it clear that a constitutionally entrenched system of responsible and representative government demands that we are able to communicate freely on political matters, and this in turn places limits on the types of laws State, Territory and federal Parliaments can enact when it comes to protesting. The constitutional limits on legislatures to regulate protest activity are articulated carefully by the majority in the High Court’s decision in Brown v Tasmania,1 based around the notion of ‘proportionality’– that is, the need to balance the freedom to communicate freely on political matters with other legitimate public interests, such as public safety. 2 This case, and other subsequent High Court decisions on the implied freedom,3 suggest that where another compelling public interest exists (such as the need to respond effectively to a pandemic) laws limiting or restricting the right to protest may well be upheld as constitutionally valid, provided the impact of the law on the implied freedom of political communication is ‘proportionate’. This is the constitutional backdrop against which the key piece of legislation regulating the right to protest in South Australian, the Public Assemblies Act 1972 (SA), exists. The Public Assemblies Act was the South Australian legislative response to a Royal Commission which had been called in response to public disorder

which had resulted after a demonstration called by the then Vietnam Moratorium Committee (VMC) in Adelaide. The VMC opposed the War so vehemently that it considered it necessary and justified to stop traffic at the intersection of North Terrace and King William Street in 1970 as part of their public demonstration in opposition to the war.4 Public disorder resulted from the demonstration and there were numerous arrests.5 As a result of the public controversy, which resulted from the demonstration, the Dunstan Government called a Royal Commission chaired by former Supreme Court Justice Charles Bright6 to examine the right of public protest. In its findings, the Royal Commission recognised that the right to protest was a fundamental right of the citizen, but also recommended that it be regulated by legislation, in the form of the Public Assemblies Act 1972. Despite the significant social changes that have occurred in South Australia since the Vietnam War, the Public Assemblies Act 1972 has remained relatively unchanged7 by legislative amendment for almost fifty years and sets out the legal parameters for a lawful protest or public demonstrate in this State. Section 4 of the Act requires the proponent of a public assembly to give notice to the chief secretary or to the Commissioner of police, or to the local council, detailing the date, time and location of the protest and the boundaries of the area to be occupied any protestors, or if it is to

FEATURE

move in procession, the route that it will follow. There is a focus on detailing the extent to which the protest will occupy public places and /or disrupt traffic. In practice, these matters are usually dealt with directly by the Commissioner of Police, who by subsection 6 is given broad scope to object to the proposal if it would ‘unduly prejudice any public interest.’ Public interest criteria are to be used as the basis of an objection, but if the proponents maintain their intention to conduct the public assembly, then the matter is to be resolved by a judge pursuant to section 5. Under this provision, the judge is empowered to quash any objection to the proposed protest or approve any other proposals submitted to him before, or at the hearing of, the application. This public interest test necessitates a balancing of public interests that shares features with the more detailed and prescribed ‘proportionality’ test set out by the majority of the High Court in Brown v Tasmania but lacks any rights-informed criteria or clear analytical structure. The broadly defined ‘public interest’ test in the Public Assemblies Act 1972 (SA) exposes the lack of human rights framework within South Australia, and gives rise to the potential for the democratic rights of citizens to assemble for political purposes, acknowledged as fundamental by the Bright Royal Commission, to be refused or denied without the need to justify the legitimacy, necessity or proportionality the competing public interest.

In the context of the COVID-19 pandemic, it is easy to see the broad range of competing public interests to be weighed against the right to protest and to political expression, some of which, such as the maintenance of public health, are clearly compelling. However, the lack of rights framework in South Australia leaves police commissioners, local councils and the courts with very little guidance as to whether and to what extent these public interests should justify an objection to a public assembly – particularly when the public assembly relates directly to urgent and compelling rights issues, such as black deaths in custody. Should the need to socially distance and avoid large gatherings justify a legal objection to the right to assemble and raise public awareness of police brutality against Aboriginal people? What if there are only a handful of active COVID-19 cases in the State? What if the police conduct and racial discrimination has culminated in repeated loss of life? What if the protesters are calling for the implementation of Royal Commission recommendations made 30 years earlier and still not implemented? What if the organisers of the protest undertake to comply with health directions? What if the health directives were enacted under emergency legislation, with little parliamentary oversight and exclusion from merits review? These are the challenging questions the Public Assemblies Act 1972 (SA) requires adjudicators to determine, without setting any criteria for

evaluation. These are the questions that highlight the value of developing a clear human rights framework for government decision making and parliamentary lawmaking in South Australia that would, at the very least set out a process for balancing competing rights and interests in a consistent, evidence-based way. These are also the questions that confronted the New South Wales Supreme Court when it was asked to determine whether a series of Black Lives Matter protests planned to take place in Sydney should be upheld or refused.8 In June 2020 NSW Police took Black Lives Matter advocates to court, concerned a planned protest would breach COVID-19 public health directives. Justice Desmond Fagan upheld the Police Commissioner’s objection, finding that a rally of the size contemplated by the organisers was ‘a very undesirable idea’ given the relevant health advice and that ‘[t]he exercise of the fundamental right of assembly … is not taken away by the current public health order, it is deferred,’.9 Justice Fagan acknowledged that the aim of the protest was to raise awareness about Indigenous deaths in custody, but this did not change his approach to ‘balancing’ the right to protest with the public interest in following the advice of NSW health authorities relating to large public gatherings. 10 In July 2020, a similar objection was raised to another proposed Black Lives Matter protest in Sydney, but was this time refused by Justice Adamson of the Supreme Court, who was ‘satisfied November 2020 THE BULLETIN

FEATURE

that the public interest in free speech and freedom of association outweigh the public health concerns’.11 NSW, like SA, lacks a clear human rights framework to guide these decisions, and as a result often leaves citizens unsure of how and when their individual rights will be upheld in the face of competing public interests. During the NSW Court hearings, the Commissioner of Police argued that those agitating for reform to address black deaths in custody or seeking to show support for the Black Lives Matter campaign could express their views ‘online’, rather than assembling in public.12 This argument was rejected by Justice Adamson in Gray,13 who observed that depriving groups of the ‘opportunity to demonstrate in an authorised public assembly would inevitably lead to resentment and alienation’.14 It is also important to note that there are legal consequences of engaging in online advocacy if that advocacy encourages or directs others to engage in unlawful or criminal activity (such as trespass or public disturbance or interference with agriculture), defames or contains lies about another person, company or organisation or constitutes harassment or discrimination. Some may argue that the reason many South Australians have been looking for lawful (and sometimes unlawful) ways to publicly express their views or assemble in public in 2020 is because of a fundamental and systematic failure of our legal and political system to address the disadvantage and discrimination experienced by Aboriginal people in our community, despite numerous inquiries and investigations documenting the devastating impact this is having on people’s lives and wellbeing. This includes the Royal Commission into Aboriginal Deaths and Custody (RCIADIC) which set out a range of practical strategies for

10 THE BULLETIN November 2020

reducing overrepresentation of Aboriginal people in custody and addressing excess of zeal by police For example, the Commission recommended consultations with the Aboriginal community over policing methods, reforming excessive motor vehicle offences in the Aboriginal community, and removing offences of using offensive languages in circumstances where contact between Aboriginal people and police had been commenced by police.15 These and many other RCIADIC recommendations remain to be implemented. The number of Aboriginal deaths in custody continues to rise, as do the powers of the Commissioner of Police to arrest and detain South Australians for minor offences or breaches of police directions. This brings us to the central paradox of the COVID-19 pandemic: on the one hand, we have seen our Parliament act swiftly and decisively to protect our collective right to health by deploying unparalleled public resources and utilising the full range of legal tools available. On the other hand, we have once again witnessed the devastating consequence of the misuse and overuse of executive power against marginalised communities by the very same authorities tasked with keeping us safe. Both the COVID-19 pandemic and the Black Lives Matter movement demonstrate the challenges associated with ‘balancing’ competing human rights and public interests. Both also underscore the value and benefits of using a human rights framework to approach this task – not to distort the outcomes in favour of any particular right or interest group. A human rights approach – should provide a clear, consistent analytical framework for considering criteria such as legitimacy, necessity and proportionality– criteria that have been accepted by almost all other democratic states as having universal application. Unfortunately, it is yet to be explicitly adopted in South Australia. B

Endnotes 1 Brown v Tasmania (2017) 261 CLR 328. Howie, Emily. Brown v Tasmania: Challenging restrictions on the right to protest [online]. Bulletin (Law Society of South Australia), Vol. 39, No. 6, Jul 2017: 24-25. Availability: <https://search.informit.com.au/ documentSummary;dn=960229984580014;res =IELAPA> ISSN: 1038-6777. [cited 21 Sep 20]. 2 Brown v Tasmania (2017) 261 CLR 328 [123]-[146] (per Kiefel CJ, Bell And Keane JJ.) 3 See e.g Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567-568; McCloy v New South Wales (2015) 257 CLR 178 at 213 [68] per French CJ, Kiefel, Bell and Keane JJ, 232 [131] per Gageler J. 4 Malcolm Saunders, ‘Vietnam War’, SA History Hub, History Trust of South Australia, https:// sahistoryhub.history.sa.gov.au/events/vietnamwar, accessed 21 September 2020. 5 Samuels v Stokes (1973) 130 CLR 490 6 Royal Commission into September Moratorium Demonstrations (1971-1972) Chaired by Sir Charles Bright (Supreme Court Justice). 7 Minor changes were made in 2019 by the Statutes Amendment and Repeal (Simplify) Act 2019 relating to facilitating notification of public assemblies via websites. 8 Jamie McKinnell, Lily Mayers and Emma Elsworthy ‘NSW Supreme Court bans Sydney Black Lives Matter protest’ ABC News online, 5 July 2020 https://www.abc.net.au/news/202006-05/court-rules-sydney-black-lives-protestunsafe-due-to-coronavirus/12324186 9 Commissioner of Police v Bassi [2020] NSWSC 710 (5 June 2020) [31]. 10 Commissioner of Police v Bassi [2020] NSWSC 710 (5 June 2020) [19]. 11 Commissioner of Police v Gray [2020] NSWSC 867 (4 July 2020) [70]. 12 For further discussion see Wilkins, Denise J, Livingstone, Andrew G & Levine, Mark 2019, ‘Whose tweets? The rhetorical functions of social media use in developing the Black Lives Matter movement’, British Journal of Social Psychology, vol. 58, no. 4, pp. 786–805; Yates, MD 2020, ‘COVID-19, Economic Depression, and the Black Lives Matter Protests’, Monthly Review (New York. 1949), pp. 14–33. 13 Commissioner of Police v Gray [2020] NSWSC 867 [61]-[69] 14 Commissioner of Police v Gray [2020] NSWSC 867 [69] 15 See Royal Commission into Aboriginal Deaths and Custody (1991) www.austlii.edu.au/au/ other/IndigLRes/rciadic/.

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FEATURE

A Vote of Thanks for ss 18C and 18D of the Racial Discrimination Act DR MATTHEW STUBBS, ASSOCIATE PROFESSOR, ADELAIDE LAW SCHOOL; CHAIR, HUMAN RIGHTS COMMITTEE

ection 18C of the Racial Discrimination Act 1975 (Cth) has survived into 2020, notwithstanding the many efforts to eviscerate or remove it in recent years. This brief vote of thanks offers a summary of the actual operation of ss 18C and 18D (which is at odds with the way these provisions are often described in critical commentary) and reflects on why these provisions remain an important (and appropriately balanced) legal protection against racial discrimination in the COVID world and (hopefully at some point) the post-COVID world.

colour or national or ethnic origin of the other person or of some or all of the people in the group. The key objection raised against this provision relates to its impact on free speech. As Patrick Keyser has observed, s 18C has become ‘a matter of talismanic importance for opinion leaders from the conservative right’.2 Thus, Simon Breheny from the Institute of Public Affairs has criticised s 18C as ‘one of the most significant restrictions on freedom of speech in this country … an excessive, unnecessary and counterproductive restriction on Australians’ liberties’.3

WHAT’S ALL THE FUSS ABOUT? Section 18C offers ‘legal protection … to the victims of extreme racist behaviour … is intended to strengthen and support the significant degree of social cohesion demonstrated by the Australian community at large … [and] is based on the principle that no person in Australia need live in fear because of his or her race, colour, or national or ethnic origin’.1 All of us – and all of our clients – might be vulnerable to the harm that extreme racist hate speech can cause; s 18C is a legislative response that aims to avoid such harm, where it can be avoided consistently with the promotion of robust debates on matters of public importance. The following conduct is proscribed by s 18C: It is unlawful for a person to do an act, otherwise than in private, if: a. the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and b. the act is done because of the race,

12 THE BULLETIN November 2020

UNDERSTANDING HOW S 18C ACTUALLY OPERATES There are three keys to understanding that this is not how s 18C operates. First, the consistent judicial interpretation of the key words ‘offend, insult, humiliate or intimidate’ establishes a very high threshold. Section 18C applies only to acts which have ‘profound and serious effects, not to be likened to mere slights’;4 ‘a mere slight or insult is insufficient’;5 it applies only to conduct ‘more serious than mere personal hurt, harm or fear’ which ‘is injurious to the public interest … in a socially cohesive society’.6 Second, s 18C relies on an objective, not subjective, test: ‘whether an act contravenes the section is not governed by the impact the act is subjectively perceived to have by a complainant. An objective test must be applied in determining … would the act, in all the circumstances in which it was done, be likely to offend, insult, humiliate

or intimidate a person or a group of people of a particular racial, national or ethnic group?’.7 Third, s 18D provides a broad defence which is protective of rights of expression: Section 18C does not render unlawful anything said or done reasonably and in good faith: a. in the performance, exhibition or distribution of an artistic work; or b. in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or c. in making or publishing: i. a fair and accurate report of any event or matter of public interest; or ii. a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment. Cumulatively, these points illustrate the limited operation that s 18C actually has, and the breadth of the s 18D defence (which extends to ‘anything said or done reasonably and in good faith … for any genuine … purpose in the public interest’). The reality is that the impact of ss 18C and 18D on free speech is proportionate to the evils of the racial hate speech that it confronts.

AN EXAMPLE OF S 18C IN OPERATION A case example provides an illustration of the way in which s 18C permits a robust (even intemperate) discussion of matters of public importance whilst providing protections against the harm caused by racial hate speech. As Hely J noted in

FEATURE

Jones v Scully, under s 18C: ‘There is a line between legitimate criticism, and prejudicial vilification’.8 This line is well illustrated in the decision of Carr J in McGlade v Lightfoot. His Honour found the following passage, riddled with factual errors and offensively racist though it is, did not violate s 18C: ‘Aboriginal people have enough rights in Australia as it is now. No-one can kid me that 1.5 percent of the people can own over half Australia already and have an implied right to the rest of Australia except the cities … The mere fact that some of their forbearers [sic] were here first with no title or no ownership of land hardly validates them owning a significant part of Australia.’9 That passage was held to be merely ‘a robust statement of a point of view’,10 lying on the ‘legitimate criticism’ side of the line. On the other hand, the following passage was held to violate s 18C: ‘Aboriginal people in their native state are the most primitive people on earth … If you want to pick out some aspects of Aboriginal culture which are valid in the 21st century, that aren’t abhorrent, that don’t have some of the terrible sexual and killing practices in them. I’d be happy to listen to those’.11 Carr J’s interpretation that these statements were on the wrong side of the line – that they exceeded legitimate criticism and became unvarnished racial vilification likely to cause profound offence and insult to Aboriginal people – seems eminently sensible.

THE CONTINUED VALUE OF SS 18C AND 18D Now is a good time to reflect on the value of ss 18C and 18D. The increase

in public racism due to COVID-1912 reminds us why the protection offered by these sections is needed – now more than ever. Further, the recent death of Fredrick Toben13 causes us to recall that it was s 18C that rendered unlawful his hateful conduct.14 Finally, the lodgement of a s 18C case by Palm Island residents in August 202015 seems likely to return the provision to attention. The free speech ideal that good ideas will drive out bad remains important but in reality, our society does not live up to it – access to the marketplace of ideas is not equally available to all. Section 18C provides necessary and proportionate protection to vulnerable Australians from racial hate speech when it is reasonably likely to cause profound or serious offence, insult, humiliation or intimidation. We should all celebrate and be thankful for this protection. B

Endnotes 1 Explanatory Memorandum, Racial Hatred Bill 1994 (Cth) 1. 2 Patrick Keyzer, ‘Free speech – how far is too far?’ (11 October 2016) <https://www.latrobe.edu.au/ news/articles/2016/opinion/free-speech-howfar-is-too-far>. 3 Evidence to the Parliamentary Joint Committee on Human Rights, Parliament of Australia, 31 January 2017, 27 (Simon Breheny), quoted in Parliamentary Joint Committee on Human Rights, Parliament of Australia, Inquiry Report: Freedom of Speech in Australia (28 February 2017) 13. 4 Creek v Cairns Post (2001) 112 FCR 352, [16] (Kiefel J). 5 Kelly-Country v Beers (2004) 207 ALR 421, [87] (Brown FM). 6 Eatock v Bolt (2011) 197 FCR 261, [263] (Bromberg J). See also: Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105,

123 (French J); Jones v Toben [2002] FCA 1150, [92] (Branson J); Clarke v Nationwide News Pty Ltd trading as The Sunday Times (2012) 201 FCR 389, [67]–[69] (Barker J); Prior v Queensland University of Technology (No 2) [2016] FCCA 2853, [30], [57]-[58], [70]–[71] (Judge Jarrett). 7 Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615, [15] (Drummond J). See also: Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, [12]; Jones v Scully (2002) 120 FCR 243, [98]-[100] (Hely J); McGlade v Lightfoot (2002) 124 FCR 106, [42] (Carr J); Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105, [66]; Eatock v Bolt (2011) 197 FCR 261, [251]; Clarke v Nationwide News Pty Ltd trading as The Sunday Times (2012) 201 FCR 389, [46]; Prior v Queensland University of Technology (No 2) [2016] FCCA 2853, [30]. 8 Jones v Scully (2002) 120 FCR 243, [185]. 9 McGlade v Lightfoot (2002) 124 FCR 106, [55]. 10 Ibid [56]. 11 Ibid [17]. 12 See, eg, Chin Tan (Race Discrimination Commissioner), ‘Racism Undermines COVID-19 Response’ (8 April 2020) <https://humanrights. gov.au/about/news/racism-undermines-covid19-response>; Michael Walsh, ‘Here’s what you told us about racism in Australia during the coronavirus pandemic’ ABC News (14 May 2020) <https://www.abc.net.au/news/2020-05-14/ racism-in-australia-during-the-coronavirus-covid19-pandemic/12234832?nw=0>. 13 ‘Dr Fredrick Toben dead at 76’ The Advertiser (3 July 2020) <http://www.adelaidenow.com.au/ news/south-australia/news-story/2b85ce37651eb 7f03d5fbea7c2ce609d>. 14 Jones v Toben [2002] FCA 1150. 15 See, eg, Amanda Meade, ‘Palm Island residents launch human rights complaint over ‘racist’ Channel Nine and Daily Mail reports’ The Guardian Australia (21 August 2020) <https:// www.theguardian.com/media/2020/aug/21/ palm-island-residents-launch-human-rightscomplaint-over-racist-channel-nine-and-dailymail-reports>; Sofie Wainwright, ‘Palm Islanders to launch action against Channel Nine, Daily Mail over ‘racist’ reports’ ABC News (21 August 2020) <https://www.abc.net.au/news/2020-08-21/ palm-islanders-accuse-nine-and-daily-mail-ofracist-reporting/12578088>.

November 2020 THE BULLETIN

LEGAL EDUCATION

50,000 people helped by SA migrant legal education program MELANIE ROBINSON AND ELLA PAK POY, LAWYERS AND LEGAL EDUCATION OFFICERS, LEGAL SERVICES COMMISSION

transformative legal education project is about to mark a major milestone in SA. Almost 50,000 people have been helped through this legal aid program that demonstrates the intrinsic value of legal education and its fundamental connection to the rule of law. People who are new to Australia face negotiating the first years of settlement with limited opportunities to learn about and understand Australian laws and legal systems. The ability of new migrants to access legal information and the legal system is often restricted by language barriers and a lack of knowledge about where to turn to get help with legal issues at an early stage. Since March 2004, the Legal Services Commission has recognised and responded to this need through its Migrant Information and Legal Education Program (MILE). This program helps people from non-English speaking backgrounds to achieve greater self-reliance and social mobility through improved awareness of their rights and responsibilities under Australian law. The MILE project has reached nearly 50,000 people from new migrant communities through a variety of programs and legal education resources (a number of them are outlined below).

FACE TIME A key feature of the MILE program is the delivery of community presentations and workshops. Working directly with new arrivals as part of community based settlement services, MILE runs workshops on key legal topics. These include: the basics of Australia’s legal system, renting, consumer rights, driving laws and car accidents, employment laws, dealing with fines, equal opportunity protections, criminal law, rights with police, family law, child protection and family violence. Crucially, Legal Education Officers deliver this content in person – allowing participants to ask questions and test their assumptions in a supportive environment at a critical stage of their settlement. This

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The Commission’s legal education materials are very popular with migrant communities

encourages people to seek out help with legal issues at an early stage. The workshops are accompanied by interpreters. Just as importantly, the information is delivered in a manner than lends itself to being translated from one language to another in real time. MILE workshops are also provided for communities that are more established in their settlement. In those circumstances, community leaders or organisations may reach out for a presentation on a particular topic, such as driving laws. The program also builds the capacity of migrant leaders to help people in their communities to identify legal problems and connect with legal assistance services.

PARTNERSHIPS WITH COMMUNITY LEADERS It can be enormously valuable for community leaders to be involved in the delivery of legal education. In 2017 the MILE project created eight videos in which migrant community leaders provide information to their communities about connecting with legal assistance. Each of these Linking the Law videos is about a minute long – a perfect length for

distribution on social media. The films are in Arabic, Dari, Dinka, Hindi, Mandarin, Nepali, Pashto, Swahili and Vietnamese. They were produced by the Commission with funding from the Law Foundation.

LAW IN 10 LANGUAGES Face-to-face discussions at MILE workshops provide insight into the needs of migrant communities and the resources they require. In 2014, the Commission attracted national attention when it created short guides to key laws in ten languages. These Law for You guides are free of jargon and cover laws relating to common life events. The project was an SA first and was funded by the Law Foundation. The guides are written in Arabic, Burmese, Chinese (Mandarin), Dari, English, Hindi, Nepali, Persian, Swahili, and Vietnamese. They cover topics such as driving, buying a used car, vehicle accidents, purchasing goods and services, police, family violence, renting, marriage, separation and divorce, children and separation, caring for children, government decisions, workplace laws, and fines. The Law for You booklets continue to be some of the Commission’s most widely requested publications.

LEGAL EDUCATION

LEGAL LITERACY Learning English provides crucial opportunities for legal education. What’s the Law? is a free legal education kit for use in English language classes. It includes stories about common legal problems that new migrants may encounter, and is accompanied by activity sheets. The kit also includes notes for the teacher.

COVID-19 AND LEGAL EDUCATION The Legal Services Commission is obliged, by law, to provide legal education to people in SA. The pandemic has had a

major impact on the Commission’s legal education services and, simultaneously, has reinforced the value of the resources outlined above. These readymade materials continue to be widely distributed and can be a lifeline to people experiencing legal problems. In addition, the Commission has responded to COVID-19 by producing a Keeping Connected newsletter that provides legal education information to stakeholder agencies whose clients often experience legal problems. By highlighting a variety of legal topics and resources, this newsletter helps to inform people

- including new migrants - about their rights, responsibilities and options. While legal education video meetings also provide a workaround of sorts during the pandemic, they are no substitute for workshops conducted in-person. Faceto-face activities are particularly powerful because they allow participants to freely ask questions about laws that impact on their lives, their families, their health and their wellbeing. They highlight that legal education is more than just the presentation of information. It is about creating a space that encourages a conversation about the law and its impact on everyday life. B

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November 2020 THE BULLETIN

DEMOCRACY

Security laws undermine democracy in Hong Kong PAULINE WRIGHT, PRESIDENT, LAW COUNCIL OF AUSTRALIA

he Law Council of Australia has long enjoyed close relationships with the Law Society of Hong Kong and the Hong Kong Bar Association, working with these organisations bilaterally and in multilateral forums including LAWASIA. Since the introduction of the Extradition Bill in February 2019, the Law Council has watched developments in Hong Kong with great concern, which has heightened following the introduction of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, which entered into force in Hong Kong on 30 June 2020. The National Security Law was drafted by China’s National People’s Congress Standing Committee (NPCSC) and enacted by executive order – bypassing Hong Kong’s Legislative Council and dispensing with public consultation. Although Article 23 of Hong Kong’s Basic Law reserves national security as an autonomous power of the Hong Kong Government, the governments of China and Hong Kong have justified the National Security Law on the basis that Hong Kong’s legislature has failed to pass such laws. The Law’s six chapters assign responsibilities between organs and authorities of the People’s Republic of China and Hong Kong, establish criminal offences relating to national security, and outline provisions relating to jurisdiction and procedure.

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The Law Council has four concerns regarding the National Security Law. Firstly, the Law represents a significant departure from Hong Kong’s legal tradition and substantially undermines the independence and jurisdiction of Hong Kong’s judiciary. The National Security Law prevails in the case of any inconsistency between the Law and the other laws of Hong Kong; and its interpretation is vested in China’s NPCSC instead of Hong Kong’s judiciary. This follows the orthodoxy in Mainland China where judicial interpretation is considered a legislative activity and is a substantial departure from Hong Kong’s common law tradition and the role of the judiciary stipulated in the Basic Law, which maintains separation of powers between the legislature, the executive and the judiciary. Hong Kong’s Chief Executive is vested with the power to designate particular judges to handle national security cases, and a judge is ineligible to hear national security cases if he or she “has made any statement or behaved in any manner endangering national security.” The Chief Executive is also empowered to determine whether an act involves national security or the evidence involves state secrets, and issue a certificate to that effect which constitutes a binding determination on the courts. This incursion by Executive on the independent judiciary is deeply concerning.

Significantly, the new Office for Safeguarding National Security of the Central People’s Government in Hong Kong SAR (a PRC body), may in some circumstances, and with the approval of the Chinese Government, exercise jurisdiction over a case and arrange for the case to be tried before Chinese courts and under China’s legal system. This raises particular concerns that persons subject to the jurisdiction of Chinese courts will be denied the procedural guarantees to which they are entitled under Hong Kong’s legal system and may not receive a fair trial in accordance with international standards. These provisions are difficult to reconcile with Article 19 of the Basic Law, which vests independent judicial power (including the power of final adjudication) in Hong Kong, and provides that Hong Kong courts shall have jurisdiction over all cases in the region. Secondly, the broadly defined offences of sedition, secession, terrorism and collusion with foreign forces are vulnerable to abuse, undermine rights protected under the International Covenant on Civil and Political Rights (ICCPR), and are likely to have a chilling effect on civil life in Hong Kong. In both the Sino-British Joint Declaration and Hong Kong’s Basic Law, China agreed to guarantee the continued enjoyment in Hong Kong of the rights protected under the ICCPR as part of the ‘One Country, Two Systems’ policy.

DEMOCRACY

Hong Kong residents protest the Extradition Bill in 2019. (CC BY 2.0) by Studio Incendo (Flickr)

Although Article 4 of the National Security Law specifically preserves the application of rights guaranteed in Hong Kong under the Basic Law and the ICCPR, all four offences could capture expressions of opinion or participation in peaceful protests. This gives rise to concern that the Law will be implemented to criminalise legitimate activities of human rights defenders, journalists, political figures and civil society organisations; and suppress, police and sanction political discussion. There is also concern that the ‘collusion’ offence will capture legitimate exchanges between the people of Hong Kong and their friends and colleagues abroad. The Law Council’s concerns are echoed in the open letter sent by a group of seven UN Experts to the Chinese Government, which found that the Law “lacks precision in key respects, infringes on certain fundamental rights and may not meet the required thresholds of necessity, proportionality and non-discrimination under international law.” The open letter also emphasises the importance of the “principle of legal certainty” (which requires criminal laws to be sufficiently precise to enable people to understand which types of behaviour and conduct constitute a criminal offence) and the obligation of states to ensure that any measures taken to combat terrorism or manage threats to national security must comply with all obligations under international human rights law and be

strictly guided by the principles of legality, necessity and proportionality. Thirdly, the National Security Law substantially undermines Hong Kong’s autonomy under the One Country, Two Systems policy. In addition to vesting the NPCSC with the power of interpreting the Law and empowering the Office for Safeguarding National Security to determine whether a case falls within China’s jurisdiction, the Law permits Chinese security and intelligence agencies to operate in Hong Kong and act outside local laws, and provides them with immunity from inspection or detention by local authorities while carrying out their duties. Finally, the extraterritoriality of the National Security Law is unprecedented. It applies to “offences committed against [Hong Kong] from outside the Region by a person who is not a permanent resident of the Region.” This is of particular concern to the Law Council, since foreign persons or entities discussing Hong Kong’s autonomy, the state of human rights or democracy in Hong Kong could be captured under the Law’s offences. Since the introduction of the Law, Hong Kong’s Government is reported to have issued arrest warrants for six prominent pro-democracy figures exiled or living abroad. Samuel Chu, a US citizen born in Hong Kong, is the first non-

Chinese citizen subject to an arrest warrant under the Law. It remains unclear how the extraterritorial application of the Law will operate in practice, however the Chinese Government-owned Global Times reported that Hong Kong authorities will exert pressure on “safe-haven countries through the Interpol framework” and will continue to seek activists “under the current framework of domestic and international laws and agreements.” The Law Council is supportive of the steps taken by the Australian Government to suspend Australia’s Extradition and Mutual Legal Assistance Agreements with Hong Kong, on the basis that the passage of the National Security Law represents a “fundamental change in circumstances” for the purposes of Article 62 of the Vienna Convention on the Law of Treaties. Although the full extent of the Law’s implementation remains to be seen, it is the view of the Law Council that the National Security Law casts sufficient doubt over the integrity of Hong Kong’s criminal justice system and fair trial guarantees to warrant the suspension of the Agreements. Moreover, the Law casts into question the future of Hong Kong’s autonomy under the ‘One Country, Two Systems’ policy. The passage of the Law was a dark day indeed for democracy in Hong Kong. B November 2020 THE BULLETIN

FROM THE CONDUCT COMMISSIONER

Sexual harassment in the legal profession: the role of complaints processes GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER

he legal profession clearly has a problem with sexual harassment. Over the past few years, the prevalence of sexual harassment in the profession has been highlighted in many reports and surveys. It has also been brought to everyone’s attention by recent incidents, most notably that involving former High Court Justice Dyson Heydon. The reports and survey results however are definitely not reflected by the number of complaints I receive about this type of conduct. I receive very few complaints of this nature. The International Bar Association’s legal advisor, Kieran Pender, who led the project that produced the report: “Us Too? Bullying and Sexual Harassment in the Legal Profession”, has highlighted the difficulties of investigating sexual harassment and bullying complaints:

“Our research found that targets of bullying and sexual harassment very rarely report the misconduct to their workplaces or regulators. They don’t report because of the status of the perpetrator, fear of repercussions and because the incidents are often endemic to the workplace. These issues affect all parts of the profession, from entry-level trainees to attorneys-general. We must take responsibility and develop standards of conduct to make it clear that this behaviour has no place in our profession.” The Victorian Legal Services Commissioner, Ms Fiona McLeay, at a recent on-line panel discussion arranged by Melbourne Law School, said the following: “Formal reporting mechanisms on their own won’t stop this behaviour, and it shouldn’t be the job of the victims of sexual harassment to have the responsibility to solve it by making formal complaints. The profession as a whole,

across all levels, needs to commit to addressing this problem.” Clearly, there is no single, easy solution to the problem. The legal community must work together to find ways to address it, including by protecting all victims of sexual harassment and inappropriate behaviour, and by addressing the corporate culture and governance structures that arguably contribute as much as any other cause by supporting and encouraging an environment within which such behaviour not only exists but can be hidden. I sincerely hope that the complaints system can be a part of the solution too – and ideally a greater part than so far, based on complaint numbers, it has been. I am committed to doing as much as I can, within the system’s current constraints, to make complaining about this type of conduct as easy and painless as possible.

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FROM THE CONDUCT COMMISSIONER

I’m sure I would get many more complaints than I do currently if a complaint could be made anonymously. But section 77B(3a)(a) of the Legal Practitioners Act (Act) says that a complaint must identify the complainant. So, I can’t treat an anonymous complaint as a formal complaint for the purposes of the Act. In any event, there isn’t much I could do with an anonymous complaint, as I can only make findings of misconduct based on substantial, admissible and reliable evidence of that misconduct – which an anonymous complaint most certainly isn’t. The current system does however specifically recognise that sexual harassment and other similar conduct is not acceptable. The Australian Solicitors’ Conduct Rules (rules 42.1) and the South Australian Barristers’ Rules (rule 117) have the following mirror provisions that address this type of conduct: A solicitor/barrister must not in the course of practice, engage in conduct which constitutes: • discrimination; • sexual harassment; or • workplace bullying. The Victorian and New South Wales regulators have another string to their bow under the Legal Profession Uniform Law, which permits the regulator to audit the compliance of a law practice with its professional obligations. I do not have that power under the Act. I think that it is generally accepted that the current complaints systems across the country are far from perfect in the way they deal with this type of complaint. The Law Council said that following in its statement of the outcomes of a recent roundtable discussion it convened to discuss this issue: “The roundtable acknowledged that law reform

must be accompanied by cultural change in the legal profession, which could be achieved through measures including a national model sexual harassment policy and guidelines; a centralised source of information and suite of educational tools; the facilitation of consistent complaints processes across Australia; and the development of appropriate training.” (My highlighting) In South Australia we don’t, at least at the moment, operate under the Uniform Law. The Act doesn’t allow a victim of sexual harassment to make an anonymous complaint. And it is clearly the case that, for all the reasons described earlier in the statement by Mr Pender, it remains challenging for a victim (or observer) of sexual harassment to make a complaint. I have therefore been considering what my office can perhaps do differently so that no-one is deterred from making a formal complaint – and is perhaps even emboldened to do so. I will perhaps first make clear what I can’t do – I can’t keep the complainant’s identity entirely confidential. If I am going to investigate a complaint of this nature against a practitioner, then procedural fairness would always require me to tell the practitioner who the complainant is. In every other respect though, I will do whatever I reasonably can to keep the complainant’s identity confidential. • My office is of course bound by confidentiality obligations under the Act. I will also treat such a complaint confidentially internally within my office, by restricting access to our file to those staff members who are working directly on the investigation of the complaint. • I would de-identify a complainant’s name in any determination I make

about a practitioner’s conduct. • Sections 69 and 69A of the Evidence Act 1929 allow parties to disciplinary proceedings, as well as a complainant, to make an application to the Legal Practitioners Disciplinary Tribunal and/or the Supreme Court for the suppression of the complainant’s name. I would take all reasonable steps to support and/or make such an application. It is important to highlight that it would not be unusual in such circumstances for a complainant to have his or her own legal representation. • The Evidence Act similarly allows for orders to be made pursuant to section 69 for the closure and/or clearance of the Court or the Tribunal, as does section 84A of the Act in relation to the Tribunal. During the investigation of such a complaint, we will encourage the complainant to have a support person present when appropriate, for example during the taking of a statement. I have also established in my office a process by which a potential complainant can speak or correspond with one of my staff members, Ms Deslie Billich. Ms Billich She has been specifically selected for this role because of her experience in gender related issues, as well as her having done a substantial amount of work with victims. A person who is considering making a complaint of this nature can speak to or email her directly, with a view to finding out more information about the investigation process if such a complaint were to be made. That direct and confidential contact can be made either on 08 8456 8870 or by email to dbh@lpcc.sa.gov.au. There is also a new information sheet about this type of conduct. B November 2020 THE BULLETIN

FEATURE

Aboriginal Law Studies Program - A Pathway to Law School and Employment DANIELLE MISELL, MEMBER OF THE BULLETIN COMMITTEE & ABORIGINAL ISSUES COMMITTEE

n 2011, I was invited to join TAFE SA Justice and Policing Studies for six months to start a pilot program in Port Augusta for Aboriginal students which provided a pathway into Adelaide University Law School and employment in the legal sector. This was the start of a new career path for me which involved moving from legal practice into the world of education. Over nine years later, I am still involved with this program, which amazingly has proven to have long term sustainability, thanks to the ongoing support of the Law Society, the wider legal profession and TAFE SA. To date, 25 students have completed the program (others will complete this year) with some graduates moving on to study at universities or work in the legal sector. I have been privileged to work closely with each of these students and to share their individual learning journeys. I understand there are pre-law programs offered throughout Australia. The Aboriginal Law Studies Program is unique because it provides a comprehensive two-year program that aims to build confidence and the learning skills needed to move on to university level studies and for employability in the workforce. I hope this article shines a light on how important pathway programs such as this one can be to address inequality of representation in the legal profession and the justice system.

BACKGROUND Much groundwork was covered for this program, long before my involvement. The program was initiated by members of the then Community Relations Committee of the Law Society of South Australia who I understand envisioned a tiered system of legal based education to allow various entry and exit levels for Aboriginal people to study law including access to university. Advice and support was sought by the Committee from the South Australian Aboriginal Advisory Council, Members of the Law Society of South Australia

20 THE BULLETIN November 2020

and the Law Council, the Department of Further Education, Employment, Science and Technology, and TAFE SAâ&#x20AC;&#x2122;s Aboriginal Access Centre and Justice and Policing Studies. I understand community consultation also took place around that time in Port Augusta. The outcome of this process was the development of the Aboriginal Law Studies Program, which is the Certificate IV in Legal Services offered to students within a culturally appropriate flexible framework and supported program. In July 2011, TAFE SA and the University of Adelaide entered into a VET Guaranteed Entry Agreement whereby Aboriginal students who undertake and successfully complete a Certificate IV in Legal Services and who are eligible to apply for the Wirltu Yarlu Special Access Scheme are eligible candidates for entry into the Bachelor of Laws.

THE PILOT PROGRAM TAFE SA Justice and Policing Studies commenced the pilot Aboriginal Law Studies Program in Port Augusta in 2011 with five students. The program was originally designed to be completed within 12 months of full-time study; however, it soon became evident that students required more flexibility in delivery and the program was changed to part-time study and two years in duration. We would teach these students a few hours each week over Skype from Adelaide and attend Port Augusta in person for intensive workshops during each semester. A local legal practitioner provided tutorial support as well. During that time, a funding application was made to the Law Foundation of South Australia for financial support and to ensure the success and long-term sustainability of the program. This application was successful and assisted to keep the program going during the pilot stage. Three students completed the pilot program and their graduation was celebrated with much joy; shared with

family and friends, members of the legal profession including the Community Relations Committee and staff from TAFE SA. This first graduation and subsequent graduation ceremonies have shown students and their families sharing joy and pride for completing the program.

AN ONGOING PROGRAM WITH SOME FUN TOO Since that time, we have had several intakes of students from regional areas including Port Augusta, Whyalla, Port Lincoln, Berri, Port Pirie and Murray Bridge. We also have students located in Adelaide metropolitan areas join the program. To assist with building social capital for the students, we have hosted a field trip most years bringing the regional and metropolitan based students together for a week of activities including classes at TAFE SA, work place visits supported by law firms, Aboriginal Legal Rights Movement and the Legal Services Commission of South Australia, court visits hosted by members of the judiciary and Aboriginal Justice Officers, Adelaide University, Wirltu Yarlu and UniSA hosted by law lecturers and other staff members, state parliament hosted by Members of Parliament, dinners with members of the Reconciliation Action Committee as well as activities such as visits to the local museum and art exhibitions. During these visits, students were warmly welcomed and engaged in conversation about opportunities to fulfil their future aspirations. We did temporarily misplace some students at the museum for a short while, one field trip, and another group travelled backwards and forwards on the new tram on North Terrace for a while on another field trip, but that is a story for another space. From student feedback it is clear that these visits to Adelaide were an exhausting highlight of the program for them which provided opportunities to meet and speak with many people

FEATURE

from the legal profession and to build confidence and social capacity and trust that this pathway into law is a real thing. This wonderfully memorable experience is due to the ongoing support of many of you in the legal profession (you know who you are).

CHALLENGES A challenge faced by the program has been developing strategies to improve retention and completion. To complete the program is an enormous achievement for some students, who have challenging lives balancing family and community commitments, health issues, struggle financially and who may commence the program with low computer, literacy and numeracy skills. Supporting students to remain on the program has proved a moving target as we focus on each student individually to meet their needs at any given point in time. This year presented new challenges with COVID-19, particularly earlier this year during the lockdown. Students remained connected with the program and continued studies from home, despite a lack of access to technology in some cases and children needing to be home schooled. I think it has been their sheer determination to complete this program that saw them remain in contact and continue their studies from home.

WHY PROGRAMS LIKE THIS ARE SO IMPORTANT The Aboriginal Law Studies Program was conceptualised around the time the Law Council of Australia launched its Policy Statement on Indigenous Australians and the Legal Profession providing culturally appropriate guidance to all members of the legal profession involved in the development of law or public policy which affected Aboriginal people. Of relevance to the Aboriginal Law Studies Program, the Law Council acknowledged then that ‘Indigenous Australians are massively under-represented in the Australian legal profession’ due to ‘substantial barriers’1

such as ‘low socio-economic background, lack of formal education, language difficulties, perceptions by Indigenous people that law schools are not places for them, and cultural differences, including different perceptions of what law means’.2 The Law Council recommended: • The promotion of the study of law by Indigenous Australians and the provision of support to Indigenous law students; and3 • The promotion of the participation of Indigenous Australians in the legal profession.4 The Law Council at that time acknowledged that ‘[e]conomic and social empowerment can come in many forms and through a variety of mechanisms’ including through initiatives ‘directed at breaking cycles of welfare dependency and improving education and employment outcomes’.5 Towards this end, support was given to the promotion of programs and initiatives developed in conjunction with communities ‘to assist the economic and social empowerment of Indigenous Australians, where they so choose’.6 In May 2011, the Council of Australian Governments endorsed an Education Action Plan aimed to improve education and employment outcomes for Aboriginal and Torres Strait Islander people.7 The plan acknowledged the need to ‘increase the number of Aboriginal and Torres Strait Islander students who make a successful transition to university’ and to ‘increase Aboriginal and Torres Strait Islander participation in higher education’.8 The plan sought to outline ‘actions to close the gap in training, university and employment outcomes’ through improved ‘links between the school sector and the training, tertiary education and employment sectors and support the development of innovative cross-sectional approaches to programs and pathways for Aboriginal and Torres Strait Islander students’.9 A survey of Australian universities in 2018 shows ‘a steady increase in the numbers of Indigenous Australians commencing and completing an

undergraduate legal degree in Australia. However, those numbers remain below parity with the proportion of Indigenous Australians in the population’.10 Taking into account the recent downturn in the economy, job cuts and lower employment opportunities, perhaps it is time to review strategies and pathways in legal education to improve the odds of access to a university level education and employment for Aboriginal peoples in the legal sector, despite these challenging times.

CONCLUSION From my observation, programs and initiatives to assist Aboriginal and Torres Strait Islander peoples often commence as pilot programs which fail due to funding restrictions and/or a lack of resources. It has been mainly due to the determination of students to improve their chances of entering university level education or build their own capacity to gain employment in the legal sector, plus the goodwill and substantial support of the Reconciliation Action Committee and all other members of the legal profession who have volunteered their time, that this program has continued to this day. B Endnotes 1 The Law Council of Australia, ‘Background Paper, Policy Statement on Indigenous Australians and the Legal Profession’, February 2010, 6 [11] and 10-11 [40-44]. 2 Douglas H, ‘Indigenous Australians and Legal Education – Looking to the Future, 1996, 7 Legal Education Review 225 as cited ibid, 11 [42]. 3 Ibid, Law Council, 10-11 [40-44] and 23-24 [118-122]. The Law Council of Australia ‘Policy Statement: Indigenous Australians and the Legal Profession’, February 2010, 3 [9-10]. 4 Ibid. 5 Ibid, Background Paper, 28 [150-151]. 6 Ibid, Background Paper, 28 [150-154]. 7 Ministerial Council for Education, Early Childhood Development and Youth Affairs, ‘Aboriginal and Torres Strait Islander Education Action Plan 2010 – 2014’, 2010, 3. 8 Ibid, 30 [45]. 9 Ibid, 30 [46]. 10 Hobbs H and Williams G, ‘The Participation of Indigenous Australians in Legal Education, 2001–18’, 2019, 42(4) UNSW Law Journal 1294, 1328.

November 2020 THE BULLETIN

RISK WATCH

Additional Risk Management Resources for SA Insured Practitioners—Commercial Sale and Purchase Transactions GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

laims against practitioners in the area of Commercial transactions and in Commercial Leasing are consistently high in number and they also represent some of the highest value claims. Greater attention to risk management by practitioners acting in these higher risk areas will reduce claims—both in terms of the number of such claims and, importantly, the size of those claims—so that the overall cost of the professional indemnity insurance can be kept in check. To assist practitioners in this regard, the Society has recently launched further document packages for practitioners insured with the SA Professional Indemnity Insurance Scheme relating to Acting for a Vendor in a Business Asset or Business Entity Sale and Acting for a Purchaser in such a transaction, in addition to the Wills & Estates, Family Law (Financial Agreements) and Cyber Security document packages already available. There will also shortly be available document packages relating to Commercial Leasing. The new document packages have again been licensed from Lexon in Queensland and reviewed and adapted for South Australian law and practice by senior South Australian practitioners very experienced in the relevant areas. The Vendor pack contains the following documents: • Overview – Using this Guide to Act for a Vendor • Letter – to Vendor Client re COVID-19 considerations • Practice Note – File Note and Advice re COVID-19 considerations • Form – Declaration of Foreign Resident Capital Gains Tax Withholding Payments • Letter – to Vendor Client re Scope – Minimal Instructions • Letter – to Vendor Client re Scope – Instructed to Proceed • Agreement – Confidentiality Deed • Letter – to Vendor Client re Due Diligence and Pre-Contractual Issues • Letter – to Vendor Client re Contractual Issues (Business Sale) • Letter – to Vendor Client re Contractual Issues (Equity Sale)

22 THE BULLETIN November 2020

• Letter – to Vendor Client re PostContractual Issues • Checklist – Preparing for Completion • Form – Settlement Statement • Letter – to Vendor Client re PostCompletion The Purchaser pack contains the following documents: • Overview – Using this Guide to Act for a Purchaser • Letter – to Purchaser Client re COVID-19 considerations • Practice Note – File Note and Advice re COVID-19 considerations • Form – Declaration of Foreign Resident Capital Gains Tax Withholding Payments • Letter – to Purchaser Client re Scope – Minimal Instructions • Letter – to Purchaser Client re Scope – Instructed to Proceed • Agreement – Confidentiality Deed • Letter – Initial – to Purchaser Client re Legal Due Diligence inc DD Checklist • Letter – Initial – to Vendor Solicitor re Legal Due Diligence • Letter – to Purchaser Client’s Other Advisers re Legal Due Diligence • Letter – to Purchaser Client enclosing Legal Due Diligence Report • Letter – to Purchaser Client post Legal Due Diligence Report • Letter – to Vendor re Purchaser decision • Letter – to Purchaser Client re PreContractual Issues • Letter – to Purchaser Client re Contractual Issues (Business Sale) • Letter – to Purchaser Client re Contractual Issues (Equity Sale) • Letter – to Purchaser Client re PostContractual Issues • Checklist – Preparing for Completion

• Form – Settlement Statement • Letter – to Purchaser Client re PostCompletion These documents contain comprehensive guidance as to relevant issues to consider and, although no system is foolproof, should ensure that nothing is missed and clients are kept informed throughout the course of Sale/Purchase transactions. Each client letter can be adapted to suit your style and includes prompts to insert information and references to further resources and other relevant documents in the pack. Also available are a number of checklists to guide practitioners through a final review of relevant issues before things are signedoff, as follows: • Business Sale/Purchase • Share or Trust Unit Sale/Purchase • Documenting a Loan • Personal Property Securities Act • Foreign Resident Capital Gains Withholding • Letter – to Client re Pre-Execution of Commercial Agreement Access to the Commercial document packages is available only to practitioners insured with the SA PII Scheme (i.e. through Law Claims) at https://www.lawsocietysa.asn.au/ Public/Publications/Commercial_Law_ Package/Commercial_Law_Title.aspx If you have any queries or suggestions about these document packages or about Risk Management generally, please contact Grant Feary, Deputy Director, Law Claims (gfeary@lawclaims.com.au) or Mercedes Eyers-White, PII Risk Management Coordinator (meyers-white@lawclaims. com.au).

LEGAL PROFESSION DINNER FRIDAY, 20 NOVEMBER 2020 7PM â&#x20AC;&#x201C; 10PM ADELAIDE CONVENTION CENTRE

GUEST SPEAKER: DR JAMES MUECKE AM (2020 AUSTRALIAN OF THE YEAR) HOSTED BY: TIM WHITE (PRESIDENT)

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PLEASE BOOK SEATS FOR THE FOLLOWING GROUP: Please Note: For COVID-19 Contact Tracing purposes only, please provide name & contact details (phone and email address) for each attendee to mcs@lawsocietysa.asn.au by Friday, 13 November. Attendee names and contact details will be provided to the event venue for this purpose only. Maximum 10 guests per table.

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PLEASE RETURN REGISTRATION FORM AND PAYMENT BY FRIDAY, 13 NOVEMBER, TO: Law Society of SA, GPO Box 2066, Adelaide SA 5001 or Fax 8231 1929 or Email mcs@lawsocietysa.asn.au For phone enquires or payments please contact Member Services on 8229 0200 or email mcs@lawsocietysa.asn.au COVID-19 Restrictions & Information: By registering for this event, you are required to adhere to the SA Government advice found here. Should COVID-19 restrictions change and holding this event is no longer possible, or in the event of insufficient registrations, full refunds will be issued. Cancellations: Payment in full of the registration fee is required to be made at least five working days prior to the event. Previously paid registrations are transferable subject to the alternate attendee being eligible to register at the same registration fee (that is a practitioner who is not a Society member is not eligible to attend in place of a member without the price differential having been paid). Any person who has registered and paid to attend an event but is subsequently unable to do so and does not wish to transfer the registration is able to apply to the Society for a refund, however such refunds (in whole or in part) will be at the discretion of the Law Society subject to the circumstances and any external costs paid by the Society which cannot be recovered by us.

GENETIC TESTING

RESEARCHING YOUR ANCESTRY? GENETIC TESTING, LIFE INSURANCE AND DISCRIMINATION ADAM HAMILTON, LLBLP HONOURS STUDENT, FLINDERS UNIVERSITY WITH TANIA LEIMAN, ASSOCIATE PROFESSOR & DEAN OF LAW, FLINDERS UNIVERSITY

nsurers are increasingly moving towards business models that adjust premiums for life insurance in light of a more detailed assessment of future risk, including using genetic test results.1 Applicants for life insurance should be aware of the potential disclosure requirements of genetic test results. Where those results suggest an individual’s genetic ‘makeup’ indicates an increased predisposition to developing a particular disease, such as breast cancer or diabetes, insurers may increase premiums or even refuse life insurance cover.2 Insurers seek this granular genetic data on the basis that it is a more reliable predictor of future risk than broad assumptions about an individual based on their lifestyle choices. However, this ‘differential treatment of asymptomatic individuals or their relatives on the basis of their actual or presumed genetic characteristics’3 effectively amounts to genetic discrimination.4 In Australia, the Insurance Contracts Act 1984 (Cth) imposes a positive duty on applicants for life insurance to disclose information regarding their potential to develop a particular illness in the future, which duty continues until the contract is formally entered into and finalised by the insurer. This may be after the date the proposal for insurance was initially completed.5 Such a duty also arises on extension or variation of a life insurance contract.6 If the duty of disclosure is not fully complied with,7 (e.g. by failing to provide a genetic test result), an insurer can avoid the contract on the basis that the applicant acted fraudulently or made a misrepresentation.8 The Disability Discrimination Act 1992 (Cth) defines ‘disability’ as including something that may exist in the future, with explicit reference to a

genetic predisposition to a disability.9 Life insurers can lawfully discriminate against individuals on the ground of their disability by refusing to offer life insurance, if such discrimination is both based on actuarial or statistical data10 and reasonable11 having regard to the disclosed health traits of the applicant.12 Genetic test results which identify a risk of disease or disability may be a sufficient statistical basis to justify discrimination such as increased premiums or denial of cover.13 If no actuarial or statistical data is available and cannot be reasonably obtained, discrimination may still be lawful if the insurer considers ‘any other relevant factors’.14 Australian insurers have argued this type of risk-based assessment is necessary to ensure industry profitability and sustainability.15 Risk-based differential approaches have previously been accepted as rational and a social necessity by Australian courts.16 Others view this exploitation of genetic test results as unfair, unjust and socially unacceptable.17 In the United Kingdom18 and Canada,19 life insurance companies are already banned from discriminating on the basis of genetic testing. In the US, genetic exceptionalism (the belief that genetic information is so inherently different, unique and incomparable to other forms of medical information that it should be treated differently)20 underpins the implementation of the Genetic Information Non-Discrimination Act,21 with proponents arguing genetic makeup defines us as human beings and ‘explains our place in the world’.22 While rejecting genetic exceptionalism in the Australian context, the Australian Law Reform Commission and Australian Health Ethics Committee’s Joint Inquiry Final Report, Essentially Yours: The Protection

of Human Genetic Information in Australia in 200323 identified distinct differences between genetic information and other forms of medical information with specific reference to its ubiquity, its impact on relatives (including those not yet born) and its prediction capabilities.24 Australia’s position with respect to genetic exceptionalism has not markedly changed since the Essentially Yours publication in 2003, with the Privacy Act 1988 (Cth) being amended in 2010 to broadly define and group “health information” with genetic information relating to the predictive health of an individual or relative.25

RISKS OF DTC GENETIC TESTING The recent advent of Direct to Consumer (DTC) genetic testing capabilities create new challenges in the context of discrimination. These DTC genetic tests operate outside existing regulatory frameworks and protections for users of medically mediated testing. DTC genetic testing does not require genetic counselling from a health professional to identify and inform patients of any risks as a result of undertaking a genetic test.26 This means it is outside the National Health and Medical Research Centre (NH&MRC) research obligations which explicitly refers to patients being made aware that genetic test results may impact on life insurance policies.27 The Human Genetics Society of Australasia has published rigorous guidelines to assist health professionals with pre-genetic test counselling.28 These link to educational materials to assist with counselling, and explicitly refer to the patient’s disclosure obligations and the impact genetic testing may have on insurance applications.29 In the absence of professional advice, DTC genetic test results may encourage inappropriate health or lifestyle decisions, November 2020 THE BULLETIN

GENETIC TESTING

with potentially detrimental outcomes.30 The NH&MRC has warned consumers not to undertake therapeutic treatment on the basis of DTC genetic test results.31 Where results have adverse financial implications (i.e. increased premiums), this may result in stigma or discrimination, or further exacerbate an applicant’s condition.32 Misunderstanding of results may also have psychological implications if those tested believe results are more significant or detrimental than warranted.33 Where DTC genetic testing websites do refer to potential insurance implications, such references usually are contained in detailed and lengthy terms and conditions which most consumers do not read.34 If testing kits are purchased as gifts for other people, those end users are even less likely to take the time to locate or read detailed legal or other information.35 Consumers of DTC tests are therefore unlikely to have given any real informed consent. 36 Consent is even more problematic where parents submit their children’s genetic material for DTC testing.

GETTING REDRESS? What happens when loss is sustained as a result of misleading or inaccurate results? Few avenues exist for Australian consumers to seek compensation or even complain if loss or damage occurs.37 Most entities currently offering DTC genetic testing are based outside Australia,38 with no obligation to meet quality standards applying to Australian genetic testing

26 THE BULLETIN November 2020

research facilities.39 No international standard exists, so little or no regulatory oversight of genetic testing may exist in other jurisdictions,40 increasing the risk that misleading and inaccurate results may be produced.41 The Australian Therapeutic Goods Administration and Australia’s National Pathology Accreditation Advisory Committee have both released guidelines to regulate the operation of DTC genetic testing facilities in Australia. But since most DTC genetic testing facilities operate outside Australia, these may be unenforceable.42

FSC MORATORIUM Effective 1 July 2019, the Financial Services Council announced a moratorium purporting to bind its members (a majority of the industry).43 Under this moratorium, applicants for life insurance in Australia can obtain cover without disclosing adverse genetic test results, unless the following exceptions apply: • cover exceeds $500,000 for death or total permanent disability (TPD), • cover exceeds $200,000 for trauma and/or critical illness, or • cover exceeds $4,000 a month in total for any combination of income protection, salary continuance or business expenses ($48,000 annually).44 Where exceptions apply, life insurers can request, use and subsequently discriminate on the basis of genetic information when underwriting an individual’s insurance policy.45 Additionally,

no explicit reference is made to DTC genetic testing under this Moratorium, creating a significant gap and the potential for continued discrimination within the stipulated limitations. If insurers are found to not be adhering to their obligations under the moratorium, the independent Life Insurance Code Compliance Committee (Life CCC)46 has power to ‘sanction members who do not comply’,47 but consequences of failure to comply have not yet been specified.48

IS THE MORATORIUM EFFECTIVE? The effects of the Moratorium are yet to be seen. Enforceability is already being questioned, particularly in light of the selfregulated nature of the insurance industry and the lack of effective government oversight.49 This self-regulation, including the current absence of transparency when underwriting, may obscure discrimination by insurers who are using expert geneticists when creating and reviewing ‘actuarial modelling’.50 The Australian Genetic Non-Discrimination Working Group have suggested legislative protection is necessary to inhibit genetic discrimination.51 Whether genetic information sourced from medically mediated or DTC or other forms of testing should be used differently in insurance policies is unclear and requires reform. Discrimination against individuals based on genetic test results, however obtained, may diminish the positive future impacts of all types of genetic testing.52 If, as is already being observed in the

GENETIC TESTING

US,53 fear of genetic discrimination leads individuals to decline to undergo genetic testing and impedes scientific research,54 opportunities to combat and proactively treat potential illnesses or diseases individually and throughout society may be reduced.55 B Endnotes 1 Kristine Barlow-Stewart, et al, ‘How are genetic test results being used by Australian life insurers?’ (2018) 26(9) European Journal of Human Genetics, 1248, 1249. 2 Ibid. 3 M. Otlowski, S. Taylor and Y. Bombard, ‘Genetic Discrimination: International Perspectives’ (2012) 13(1) Annual Review of Genomics and Human Genetics, 433, 434 4 Ibid. 5 Prime Forme Cutting Pty Ltd v Baltica General Insurance Co Ltd (1990) 6 ANZ Ins Cas 61-02 per Tadgell J as cited in Peter Mann, Mann’s Annotated Insurance Contracts Act (Thompson Reuters, 7th ed, 2016) 172. 6 Life insurance contracts are guaranteed renewable in Australia once they have been instated, meaning there is no duty to disclose new information discovered after the contract has been established. However, the duty of disclose arises if there is an alteration to the contract, which may be necessary after undertaking a genetic test; Barlow-Stewart (n 29) 1249. 7 Insurance Contract Act 1984 (Cth), s 21(3). 8 Ibid, s 29. 9 Disability Discrimination Act 1992 (Cth) s 4(1)(j). 10 Ibid, s 46(f)(i). 11 Ibid, s 46(f)(ii). 12 McGovern, Brussen and Varga, (n 38) 9. 13 Anya Prince, ‘Comparative perspectives: regulating insurer use of genetic information’ (2018) 6(1) European Journal of Human Genetics 340, 344 (‘Comparative Perspectives’). 14 Disability Discrimination Act 1992 (Cth) s 46(g). 15 Australian Mutual Provident Society v Goulden (1986) 160 CLR 330, 339. 16 Ibid.

17 Otlowski, Taylor and Bombard (n 3) 434. 18 UK Department of Health and Social Care, Code on Genetic Testing and Insurance (2018). 19 Genetic Non-Discrimination Act, SC 2017, c 3. 20 Alexander Nill, Gene Laczniak and Paul Thistle, ‘The Use of Genetic Testing Information in the Insurance Industry: An Ethical and Societal Analysis of Public Policy Options’ (2017) 156(1) Journal of Business Ethics, 105, 112. 21 Ibid. 22 Ibid. 23 Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia (Report No 96, May 2003), 176 (‘Essentially Yours’) 691. 24 Ibid, 132. 25 Privacy Act 1988 (Cth) s6FA. 26 Grant Blashki, Sylvia Metcalfe and Jon Emery, ‘Genetics in general practice’ (2014) 43(7) Australian Family Physician 428. 27 National Health and Medical Research Council of Australia, National Health Genomics Framework 18-21 Checklist (2018-2021). 28 See generally Human Genetics Society of Australasia, The Process of Genetic Counselling (August 2008). 29 Human Genetics Society of Australasia, The Process of Genetic Counselling (August 2008) 9. 30 Deepthy Kishore, ‘Test At Your Own Risk: Your Genetic Report Card and The Direct-To-Consumer Duty to Secure Informed Consent’, Emory Law Journal, (2010) 59(6), 1553. 31 National Health and Medical Research Council, ‘Discussing Direct-to-Consumer Genetic DNA Testing with Patients, A short Guide for Health Professionals’, 3. 32 Otlowski, Taylor and Bombard (n 3) 440. 33 Kelly FJ Stewart, et al, ‘Behavioural changes, sharing behaviour and psychological responses after receiving direct-to-consumer genetic test results: systematic review and meta-analysis’ (2018) 9(1) Journal of Community Genetics 1, 14. 34 Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at The New Frontier of Power (Hachette Book Group, 2019), 236. 35 See generally Christopher Semsarian and Ray Moynihan, ‘The Christmas gift of genetic

uncertainty’ (2017) 359 (December) British Medical Journal 1. 36 Margaret Otlowski, et al, ‘Genetic testing and insurance in Australia’ (2019) 48(3) Australian Journal of General Practice, 96, 98. 37 Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Final Report, Volume 3, February 2019) 50. 38 Ronald Trent, ‘Direct-to-consumer DNA testing and the GP’ (2014) 43(7) Australian Family Physician 436, 439. 39 National Health and Medical Research Council, ‘Discussing Direct-to-Consumer Genetic DNA Testing with Patients, A short Guide for Health Professionals’, 4. 40 Ibid. 41 Trent (n 38) 439. 42 Ibid. 43 Jane Tiller, Margaret Otlowski and Paul Lacaze, ‘Should Australia Ban the Use of Genetic Test Results in Life Insurance?’ (2017) 5 (December) Frontiers in Public Health, 1, 2. 44 Financial Services Council, FSC Standard No. 11: Moratorium on Genetic Tests in Life Insurance, 21 June 2019, cl 3.3. 45 Ibid, cl 3.4. 46 Financial Services Council, ‘Genetic Tests No Longer A Barrier To Getting Life Insurance’ (Media Release) 26 June 2019. 47 Ibid. 48 Email from Nick Kirwan, Senior Policy Manager at FSC to Adam Hamilton, 14 August 2019: ‘In cases of breaches, the Standards Oversight & Disciplinary Committee would decide on the appropriate action up to and including expulsion from the FSC.’ 49 Tarishi Desai and Hayley Jones, ‘Life insurance industry bands itself from using genetic test results’ (Media Release, 8 August 2019). 50 Parliamentary Joint Committee on Corporations and Financial Services, Inquiry Into the Life Insurance Industry (Final Report, March 2018), 269 (‘Inquiry Into the Life Insurance Industry’), 151. 51 Ibid, 150. 52 Margaret Otlowski, et al, (n 36) 97. 53 Otlowski, Taylor and Bombard (n 3) 440. 54 Margaret Otlowski, et al, (n 36) 584. 55 Otlowski, Taylor and Bombard (n 3) 440.

November 2020 THE BULLETIN

YOUTH JUSTICE

AN OVERVIEW OF THE YOUTH COURT: AN ESSENTIAL & POTENTIALLY TRANSFORMATIVE JURISDICTION MAGISTRATE LUKE DAVIS Magistrate Luke Davis, who is finishing up at the Youth Court at the end of this month, explains why the Court is a unique and vital instrument of justice and protection, and provides some valuable advocacy tips for practitioners appearing in this jurisdiction.

he Youth Court is a unique jurisdiction and is, in many ways, the most important court. Part of its mystique lies in the fact that it is closed, specialised and largely centralised. It is relatively small, with four judicial officers, the Senior Judge and three Magistrates, who together preside over all Care and Protection (Guardianship) matters1 and (almost) all criminal matters in this State.2 The Youth Court shares many similarities with the Magistrates Court. In some respects, it is a microcosm of the adult court, dealing with a surprisingly wide range of offences. However, there are also significant “points of difference” which are worth appreciating, particularly for practitioners who only appear occasionally. I have always had an interest in this jurisdiction, commencing my legal career with the Legal Services Commission in 1991, cutting my teeth as a Duty Solicitor, including in the (then) Children’s Court, where the late David Alcock would always be found drinking the first of his many short blacks each morning, in Gouger Street, dressed in his black overcoat, with cigar in mouth. David was already an institution within the Commission, shouldering an immense workload, superorganised and utterly unflappable. He had a

28 THE BULLETIN November 2020

vast knowledge of the jurisdiction, yet was humble and patient, a go-to with my many questions. “What’s up?” he would ask, then quickly help. David was posthumously awarded the Law Society’s Justice Award in 2008.3 Rob Croser, urbane and eloquent, had, since 1981, acted as the Independent Child Representative within the Care and Protection jurisdiction. In 2010, Rob was awarded the National Children’s Law Award for “Outstanding representation of the interests of children”. Upon returning to the jurisdiction in 2016 as a magistrate, several things stood out to me, including: • The prolific nature of youth offending, including countless “ancillary” offences such as breaches of bail (especially curfew and non-association clauses), or minor thefts (for instance food from Coles or servos or alcohol from liquor stores). • Many offences were committed in the company of other youths, and therefore became “aggravated”. • The volume of serious offences, such as robberies and high speed “stolen” car chases, including police pursuits. • Although either a youth or the prosecution can, pursuant to section 17 of the Young Offenders Act 1993

(SA) (the Act), apply to be dealt with as an adult in a higher court, such applications are not common, leaving the Youth Court not only to sentence but also to hear trials in most major indictable matters, including historical sex offences. • A relatively small proportion of youths appeared to commit a large number of the overall offences. In particular, I noticed the link between youths who were under longterm Guardianship Orders and recidivist offending. For example, there was a direct correlation between childhood trauma, social, familial and developmental factors including early exposure to physical and emotional abuse, domestic violence, homelessness, parental substance misuse, disengagement from education and early and sustained offending. Sitting in the Court’s Care and Protection jurisdiction, with its emphasis on protecting children from harm, I was appalled to see how quickly and profoundly an infant or young person could be damaged by an unstable, unsafe and unprotective upbringing. Where an infant’s attachment with their primary care giver(s) is ruptured, particularly in the active attachment phase, it commonly has devastating, lifelong consequences. In my experience, the earlier a youth first offends, the more likely such behaviour will, without intervention, become entrenched. “In South Australia, Aboriginal youths comprise only 4% of the total population aged 10-17 years old, but make up 46% of young people in detention and 34%

YOUTH JUSTICE

of young people under community-based supervision. This equates to Aboriginal youths being 12.5 times more likely to be involved with the SAJJS than nonAboriginal youth.”4 These and other factors render Youth Court advocacy both daunting and confronting, but also rewarding. After all, your client may range from a 17-year-old street wise repeat offender charged with a raft of major indictable matters, to a 10-year-old in year 6, who can barely see over the dock. So, let us examine some of the specific features of the Court.

AGE OF CRIMINAL RESPONSIBILITY An accused must be between 10 to 17 years of age at the time of offending.5 Doli Incapax The common law presumes that a child under the age of 14 lacks the capacity to be criminally responsible for his or her acts. The child is said to be doli incapax. The Prosecution bears the onus of rebutting this presumption. It is worth quoting the majority in RP v The Queen:6 The rationale for the presumption of doli incapax is the view that a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea. … From the age of 10 years until attaining the age of 14 years, the presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the

conduct that constitutes the physical element or elements of the offence. Knowledge of the moral wrongness of an act or omission is to be distinguished from the child’s awareness that his or her conduct is merely naughty or mischievous. This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was “seriously wrong” or “gravely wrong”. No matter how obviously wrong the acts or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts…The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development is such that he or she knew that it was morally wrong to engage in the conduct. This directs attention to the child’s education and the environment in which the child has been raised.

INFORMALITY

The majority further noted:7

RECENT INITIATIVES

What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. … Answers given during a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child’s progress at school and of the child’s home life will be required.

CLOSED COURT The court is closed to the public. Sections 13 and 63C of the Act deal with limitations on publicity.

Sub-section 30(1) of the Act provides that the court must satisfy itself that the youth understands the nature of the proceedings. Sub-section 30(2) provides that where a youth is not legally represented, the court must explain in simple language the elements of the offence charged, the nature of the allegations and their legal implications. This generally results in proceedings being less formal than those of adult courts.

COURT SERVICES In addition, there will usually be an officer from the Department of Youth Justice, as well as an Aboriginal Justice Officer, present in the body of the court.

The Youth Court has recently provided an on-site Education Officer, out-posted from the Department of Education, to liaise with schools to help to transition youths back into mainstream education. The court, in conjunction with Child and Adolescent Mental Health Services (CAMHS), has over the past three months undertaken a pilot program offering the provision of on-site mental health (triage) assessments. Some clients were linked in with mental health services, and liaison with stakeholders was provided for others. as well as consultation with relevant service providers and court liaison, two mornings a week.8 November 2020 THE BULLETIN

YOUTH JUSTICE

NOMENCLATURE Sub-section 6(1) of the Sentencing Act 2017 (SA) (“the Sentencing Act”) provides that, subject to a provision in that Act to the contrary, the Sentencing Act also applies to youths. However, sub-section (6) (2) provides that, in the event of a conflict between a provision of the Sentencing Act and a provision of either the Young Offenders Act 1993 (SA) or the Youth Court Act 1993 (SA), the latter prevails to the extent of that conflict. Consequently, the sentencing discounts contained in the Sentencing Act are relevant to youths. The following terminology is specific to the Youth Court. Obligations, not Bonds A key difference between the Youth Court and adult jurisdictions is that the Youth Court cannot require a youth to enter into a bond, but may impose an obligation instead.9 Note the use of the word “impose”. Unlike the adult jurisdictions, the court does not ask the youth whether they are prepared to enter into an obligation. Further, as an obligation is a sentence, as such, it will not contain a condition to appear back before the Court for conviction/sentence in the event of a breach.10 Instead, a breach of an obligation can be laid as a stand-alone offence.11 Youth Justice Supervision is provided by a Youth Justice Officer with the Department for Youth Justice, and not by a Community Corrections Officer with the Department for Correctional Services. The potential scope of an obligation is extremely wide. For example, the court can include an obligation to participate in a specified program or to attend a specified activity centre, or even to carry out specified work (including for the benefit of a victim of the offence, a person who has suffered loss or damage or for any other person or body). An obligation can also include a condition that the youth reside where directed by the court.12

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The maximum (aggregate) amount and duration of community service is 500 hours over a period of 18 months.13 Notably, community service for youths is flexible, useful and creative, and can sometimes include credit for employment and vocational training courses. Detention rather than imprisonment A reference to imprisonment is to be read as a reference to detention; a reference to a warrant of commitment is to be read as an order for detention; and reference to a prison is to be read as a reference to a training centre. Consequently, the court issues a Mandate of detention, not a warrant of commitment, which applies in adult jurisdictions. Reports The Youth Justice Officer must, at the request of the court, prepare a report on the “social background and personal circumstances” of the youth.14 Such reports are referred to as Section 32 or Social Background Reports, not Pre-sentence Reports. Their turnaround time is six weeks, or two weeks if the youth is in custody. These reports can be extremely useful, nuanced and informative, as the writer will often draw upon and summarise a wide range of material, particularly where the youth has had prior interactions with Youth Justice and the Department for Child Protection. Such reports commonly refer to previous medical reports, intellectual functioning and psychological assessments. The author will not only interview the youth, but also immediate and wider family members, support workers, social workers, caregivers, schools, and so on.

SENTENCING Section 3 of the Young Offenders Act This all-important section underpins the way the court is to deal with youths, particularly in sentencing, but also bail (see recent decision of Justice Livesey regarding review of a bail order)15. This section provides:

1. The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential. 2. The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies: a. a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law; c. the community, and individual members of it, must be adequately protected against violent or wrongful acts. (2a) I n imposing sanctions on a youth for illegal conduct regard should be had to the deterrent effect any proposed sanction may have on the youth. 3. Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow: a. (a) compensation and restitution should be provided, where appropriate, for victims of offences committed by youths; (ab) c ompensation and restitution should also be provided, where appropriate, for persons who have suffered loss or damage as a result of offences committed by youths; b. family relationships between a youth, the youth’s parents and other members of the youth’s family should be preserved and strengthened; c. a youth should not be withdrawn unnecessarily from the youth’s family environment; d. there should be no unnecessary interruption of a youth’s education or employment; e. a youth’s sense of racial, ethnic or cultural identity should not be impaired.

YOUTH JUSTICE

Several important consequences flow from the explicit and implicit operation section 3 of the Act.

GENERAL DETERRENCE First, the concept of general deterrence does not apply.16 Diversions Secondly, where a youth appears in Court and admits to the charge (or the court makes a finding of guilt), the matter can be diverted out of the court system entirely, either by way of a formal caution or Family Conference.17 Such diversions are unique to this jurisdiction and have many advantages. The youth is dealt with in a less formal and intimidating environment, one which allows him or her to hear and be heard. Where a young person appears in court, particularly for the first time, it is easy to be flummoxed and the process can be difficult to understand. This is an outcome rather than a sentence and it concludes the Court process. Consequently, as soon as the diversion is ordered by the court, the youth is no longer subject to bail. Significantly, the youth will not have any criminal history associated with the offence. The only exception is that “Records of admissions of guilt…are admissible as evidence of prior offending in subsequent proceedings relating to offences committed before the youth reached 18 years of age but any offences so dealt with will be regarded as of minor significance”.18 In practice, previous diversions are of only limited relevance to later penalties, other than where the youth seeks a further diversion, in which case the court may examine the number and type of previous diversions and the offences they were concerned with. Even where there has been a prior caution or conference, given that a decision to divert is an exercise of the court’s discretion, there can be (in my view) no hard and fast rule as to how many times a court will divert a youth’s matters. Similarly, even where a diversion “fails” and the matter is subsequently re-laid, the court is

nevertheless vested with the power to order a fresh diversion, depending on the reasons for the failure. However, counsel should always be prepared to make appropriate submissions in this regard, not simply state that their client “has not had a diversion yet” or “has only had a caution (as opposed to a conference) before”. Note that where a youth is found guilty or pleads guilty to driving unlicensed (having never held a license) and has previously been diverted for the same offence, it will not be dealt with as a ‘subsequent’ offence, thereby attracting the mandatory license disqualification period. Youth diversions should never be alleged in adult proceedings, as section 58(1) of the Act provides that they must be disregarded by an adult court. Formal Cautions Formal cautions are particularly effective where the offending itself is at the lower end of the scale, warranting diversion, but not a full-blown conference, which cannot occur immediately and is comparatively time and resource-intensive. Common examples include street or public disorder offences (for instance disorderly behaviour); minor police offences (hinder/ resist police), or where there is no physical victim (breach of bail). Cautions work best where a Police Sergeant, familiar with the process and equipped with a good understanding of the social and family issues, is present at court, has heard the allegations and submissions and can administer the caution that day. Police are vested with a wide range of options, including one or more of an undertaking to: pay compensation; perform up to 75 hours of community service; apologise to the victim; or “anything else that may be appropriate in the circumstances of the case”.19 Undertakings are limited to three months in duration. Family Group Conferences These are powerful tools – with an emphasis on restorative justice, victim awareness, family and community participation and personal accountability.20

Family Group Conferences will be chaired by a Youth Justice Co-ordinator21 and include the youth and a representative of the South Australia Police (“SAPOL”). The youth’s guardians and (invited) relatives, the victim (and his or her guardians), and anyone else deemed to have a ‘close association’ with the youth, are able to actively participate in the conference, as well as any other invitee deemed appropriate by the Co-ordinator.22 The youth is entitled to be ‘advised’ by a lawyer at the conference.23 Whilst there will ideally be consensus, a decision can only be valid where both SAPOL and the youth agree. In terms of directed outcomes, a family conference has all the powers as that of a formal caution, but, in addition, can impose up to 300 hours of Community Service Work and an undertaking of up to 12 months in duration.24 If the youth fails to attend, attends but denies the offence, or does not comply with a directed outcome, the original charge can be re-laid.25 Other Sentencing options In addition to the Treatment Intervention Court (TIC) and Conferences for Aboriginal youths (s 22 of the Sentencing Act), the Youth Court runs an Aboriginal Sentencing Court, which is similar in nature to other Diversion Courts.

VICTIM OF CRIME LEVIES Unlike adult courts, the Youth court is not obligated to impose victim of crime levies.26 If the court does decide to impose a levy, the maximum amount prescribed by the Victims of Crime (Fund and Levy) Regulations 2018 is lower than is the case for adults.27

FINES Fines are rarely imposed, or, if so, only nominally, given that most youths have no income and section 120 of the Sentencing Act applies. The court cannot impose a fine exceeding $2,500.28 Consequently, Community Service Work is a ready option. November 2020 THE BULLETIN

YOUTH JUSTICE

CONVICTIONS Given its fundamental importance, the application of section 3 of the Act is highly relevant to the question of whether to record a conviction, which may be entertained in circumstances where an adult court would not, for instance serious, multiple or regulatory offences, or where the youth has been dealt with previously on numerous occasions. However, counsel should be aware of section 21 of the Act, which provides that in the case of a major indictable offence, a conviction should be recorded “unless there are in the opinion of the Court special reasons for not doing so, and a formal record of those is made in the Court’s reasons for judgment”. Note also that, unlike the position with respect to adults, arguably a conviction does not necessarily have to be recorded even where a sentence of detention is imposed. This is because section 23(2) of the Act provides that a youth may be sentenced to detention, home detention or a blended order if he/she is “convicted, or found guilty”. Of particular relevance is section 3(3) (d) of the Act, which provides that “there should be no unnecessary interruption to the youth’s education, employment, or family environment”. The Supreme Court has consistently upheld the importance of section 3. For example, in B, JL v Police29 at [22][23], Stanley J addressed the question of recording a conviction in the context of its impact on a youth’s future employment: The appellant was actively seeking employment and undertaking appropriate training for the trade of automotive mechanics. I consider that the recording of a conviction for a young man of 18 seeking to gain a foothold in a precarious labour market has the real potential to seriously prejudice his ability to obtain employment. The rate of unemployment amongst young people is distressingly high. It is important to recognise that the process of employing a person generally involves selecting one from a number of applicants for employment which is, on each occasion, an all or nothing affair in which the

32 THE BULLETIN November 2020

applicant who suffers some disadvantage in the employment market may each time be wholly unsuccessful. In my view it is highly relevant that if the recording of a conviction prejudices the appellant in the future in obtaining employment, it will not only be the appellant who will potentially suffer. He is now reconciled with the complainant. They have two small children. They will also be prejudiced if the capacity of the appellant to provide and support them is adversely affected. In my view it is not an answer to submit, as the respondent does, that the conviction could be expunged under the spent convictions legislation after five years. Those five years could be critical to the appellant in securing a trade. Consequently, convictions generally occur much later in the piece, after a clear pattern of recidivist offending emerges, with many opportunities afforded to the youth to change along the way. They are usually reserved, at least initially, for offending of a serious nature. This is consistent with sub-section (3)(4) of the Act, which provides that section 3 does not apply “to a court imposing sanctions on a youth who is being dealt with as an adult, whether because the youth’s conduct is part of a pattern of repeated illegal conduct” (in other words, personal deterrence), “or for some other reason, including, for example, the gravity of the illegal conduct”.

DETENTION The question of detention is provided for in section 23 of the Act. With certain exceptions,30 the court cannot sentence a youth to imprisonment.31However, the court can sentence a youth to detention in a training centre for a period not exceeding three years,32 home detention not exceeding 12 months33 and ‘blended’ orders not exceeding two years of detention followed by up to 12 months home detention.34 Sub-section 23(4) of the Act limits the circumstances in which detention can be imposed. A sentence of detention must not be imposed for an offence unless-

a. The offender is a recidivist young offender or a serious firearm offender; or b. In any other case- the Court is satisfied that a sentence of a non-custodial nature would be inadequatei. Because of the gravity or circumstances of the offence; or ii. Because the offence is part of a pattern of repeat offending. The application of section 3 in the context of detention has been extensively addressed by Appellate Courts. For example, in Hallam v O’Dea35, King CJ made the following pertinent remarks:36 The purpose of the Court therefore must be to “seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and his development into a responsible and useful member of the community”, and it is in doing that that it is to take into account the enumerated factors. The Court should therefore, if detention is indicated, impose on the child the period of detention which “will best lead to the proper development of his personality and to his development into a responsible and useful member of the community”, taking into consideration the enumerated factors or such of them as may be relevant and appropriate. The criterion for determining the length of the period of detention is therefore quite different from the criteria appropriate to determining the length of imprisonment for an adult offender. In R v QTV37, the court stated: The object specified in subs (1) of s 3 of the Young Offenders Act requires a sentence that allows for the care, correction and guidance necessary for the youth’s development into a responsible and useful member of the community. It requires the Court to assume that the youth has potential that can be realised. Those requirements are not necessarily the starting points in sentencing an adult. They will not be met by some notional discounting of what might be an appropriate sentence for an adult offender, nor will they be met by too crushing a sentence, particularly a first custodial sentence. In sentencing a youth much greater emphasis must

YOUTH JUSTICE

be given to the youth’s prospects and potential than will usually be the case in sentencing an adult, where punishment and general deterrence may well assume a more dominant role. On the other hand, community protection (s 3(2) (c)) in a case like this and deterrence within the ambit of subsection (2a) are also important and must be brought into the scales. For these reasons the sentence of a youth may bear little relationship to that imposed on an adult in similar circumstances. Sentencing “standards” will have little relevance or application. What is most important is the perceived effect that the particular penalty is likely to have on the youth offender. This can only be based on judgement and experience in dealing with youth offenders. It will always be an inherently difficult task, ideally suited to the judges of the specialist Youth Court established under the Youth Court Act 1993. Consequently, in my view, parity between co-defendants is usually of less relevance than in the adult jurisdiction.

CUMULATIVE SENTENCES With the exception of the activation of a suspended sentence obligation, sentences of detention cannot be accumulated.38 However, one penalty can be imposed for a number offences.39

NON-PAROLE PERIODS AND CONDITIONAL RELEASE The Youth Court has no power to set non-parole periods. However, s 41A of the Act provides for conditional release. In R v A40, Blue J noted: In the case of a youth sentenced by the Youth Court, the concept of detention is effectively substituted for the concept of imprisonment. The concept of conditional release is effectively substituted for the concept of parole. The period before a youth is eligible for consideration of conditional release is fixed by the statute at two thirds of the sentence of detention rather than being fixed in the exercise of the sentencing Judge’s discretion as a non-parole period. The decision on conditional release is made by the Training Centre Review Board rather than the Parole Board.

LICENSE DISQUALIFICATIONS Driver’s license disqualifications can only commence once the youth has turned 16.

PREPARATION A few points about preparation: Before Court • It pays to obtain an up to date print out from the Registry of all pending matters, with a view to consolidating court dates and not being confronted by a nasty surprise! • Similarly, it is wise to get copies of any existing bail agreements, to ensure that their conditions (e.g. addresses; curfews and so on) are consistent and your client appreciates the importance of compliance. • If on supervised bail or obligation, or in detention, Youth Justice will provide a very useful short report as to your client’s compliance. • When taking instructions, never assume that your client understands the court process, the respective roles of those present (including your own), the purpose of the hearing and how best to conduct themselves in court. Explain what is likely to occur, using plain language, free of legalese. For example, I will tell the ‘judge’ about you, but he or she may talk to you or your Mum about what you did. • Depending on the age of your client, consider having some time on your own with them to confirm their instructions, as they may not feel comfortable talking freely in front of a parent or other adult. • Take the time to understand the constellation and makeup of your client’s family. How do they get on with them? Are they or have they ever been, under guardianship. • Where do they currently reside, and who with? Transience and homelessness is a major issue, which assumes even more importance than in adult matters, given that the court may be reluctant to release a youth on bail if they are homeless, ‘couch surfing’ or their parent(s) or

guardian will not have them back and they do not otherwise have anywhere to go. Where the court simply does not possess sufficient information about a proposed placement, Youth Justice can provide a comprehensive “placement” report within two working days.41 • How long have they been there? Look for relevant underlying causes for offending – how many schools and whether they actually attend; learning difficulties affecting literacy and numeracy; introduction to drugs and alcohol; mental health; transience and homelessness. Do they feel safe at home? Speak to the parent or guardian. • Find out who is important in their life (social worker, youth worker, mentor, aunty). Speak to them to see whether they can provide a letter of support or briefly speak about your client from the body of the court. • Read your client’s antecedents carefully and understand the ‘story’ they tell about their life. Separate it into different phases reflecting their ups and downs and life events. Whilst at first blush their history appears lengthy and entrenched, often it will illustrate the youths, deprived or traumatic past, their previous circumstances and current ‘placement’. For example, where a youth is under guardianship and has many aggravated assaults, property damages and/or breaches of bail, these will commonly have occurred within the context of the youth’s placement in an ‘assessment’ unit, staffed by rotational workers, that they detest and keep leaving. Where prior matters have been dealt with ‘without conviction, no further penalty’ it often illustrates that they were at the lower end of the scale, for example chucking a tantrum and throwing something at a worker (aggravated assault using weapon), writing on a wall or breaking a cup (property damage), being listed as a missing person (breach of bail – residential or curfew) or hanging out with friends in similar circumstances (breach of bail – nonassociation with co-defendant). November 2020 THE BULLETIN

YOUTH JUSTICE

AT COURT I strongly encourage practitioners to gain an appreciation of the nature of the youth jurisdiction, which, at its best, is less adversarial and less formal than other courts. The Youth Court will be heavily influenced by your client’s personal circumstances, past, present and future, and how best to keep him/her out of the court system, to achieve their potential. Consequently, your language should be simpler. Briefly inform the court of the age of your client and who is there in support (e.g. Sarah is 14 and is supported by her mother, youth worker and DCP worker). Know the outcome you are seeking and be prepared to make appropriate, straightforward submissions, linking them to the purposes of section 3. Be practical and get to the point. Be creative and do not be afraid to make suggestions as to penalty, opening a discussion of the various options with the court. Where your client’s offending is of a more serious nature, consider the extent to which their present offending can be characterized as the product of a troubled, dysfunctional upbringing, coupled with a teenager’s need to test boundaries. Where they have an entrenched criminal history, point out periods where they ‘stayed out of trouble’. B Endnotes 1 From August 2019 to July 2020 there were 1492 new Care and Protection lodgments. 2 From August 2019 to July 2020 there were 3,742 new Criminal lodgments in the Adelaide Youth Court registry. This does not include matters from suburban or country courts.

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3 The citation on the Law Society’s website reads - Mr Alcock had been a long-time employee of the Legal Services Commission (LSC). He had practised solely in the Youth Court jurisdiction where he had been held in enormous respect by staff, fellow practitioners and judicial officers. He would give freely of his time to assist practitioners who were not familiar with the workings of the court’s jurisdiction. Most of his clients were underprivileged and many came from completely dysfunctional backgrounds. Mr Alcock had taken a position at the Aboriginal Legal Rights Movement in 1979 and soon after became the ALRM’s permanent Children’s Court solicitor. He had been enticed to move to the Legal Services Commission in 1990. Despite a desire by others to employ his talents in the adult jurisdiction, he inevitably gravitated back to the Youth Court where he spent a total of about 26 years, the longest serving professional person in the criminal jurisdiction of that court. As the senior lawyer at the Youth Court, Mr Alcock became a mentor to many younger lawyers as they came through that jurisdiction. He was generous with good counsel and assistance for legal colleagues from the LSC, the ALRM and private practice. He held the respect of the judiciary and of the prosecuting authorities. As a lawyer he was meticulous. His files were a byword in efficiency. His professional service to his clients endured through sometimes multiple court appearances over periods of years. 4 Ruby Preece - What are the possible contributing factors to the over-representation of Aboriginal youths in the South Australian Juvenile Justice system, and what initiatives can be implemented to assist in lowering this rate of overrepresentation? http://www.courts.sa.gov.au/Community/ Documents/Ruby%20Preece%20paper.pdf 5 Young Offenders Act 1993 (SA) s 5 – a person under the age of 10 cannot commit an offence. 6 RP v The Queen [2016] HCA 53 at [8]. See also R v Johnson [2015] SASCFC 170 at [87]-[92] per Peek J. 7 RP v The Queen [2016] HCA 53 at [12]. 8 To date 209 young people were triaged and through this process it was established 27% of

young people identified as Aboriginal or TSI, 20% were current CAMHS clients, and over 50% had past contact with CAMHS. 9 Young Offenders Act 1993 (SA) ss 26(1) and (2). 10 If the obligation included a condition to come back for resentence, the youth could be sentenced twice for the same offence. 11 Young Offenders Act 1993 (SA) s 26(4). 12 Young Offenders Act 1993 (SA) s 26(3)(c). 13 Young Offenders Act 1993 (SA) s 25. 14 Young Offenders Act 1993 (SA) s 32(1). 15 [2020] Tas v The Queen SASC 172 16 R v A [2016] SASCFC 66 at [59]. 17 Young Offenders Act 1993 (SA) s 17(2). 18 Young Offenders Act 1993 (SA) s 58(2). 19 Young Offenders Act 1993 (SA) s 8. 20 From August 2019 to July 2020 there were 164 successful Family Group Conferences. 21 Whilst by virtue of section 9(1) of the Act a magistrate is designated a Youth Justice Coordinator, they rarely participate in this way. 22 Young Offenders Act 1993 (SA) s 11. 23 Young Offenders Act 1993 (SA) s 11. 24 Young Offenders Act 1993 (SA) s 12. 25 Young Offenders Act 1993 (SA) s12(8). 26 Victims of Crime Act 2001 (SA) s 32(3a) 27 Victim of Crime (Fund and Levy) Regulations 2018 (SA). 28 Young Offenders Act 1993 (SA) s 24. 29 [2017] SASC 9 30 Young Offenders Act 1993 (SA) s 23(6). 31 Young Offenders Act 1993 (SA) s 23(1). 32 Young Offenders Act 1993 (SA) s 23(2)(a) 33 Young Offenders Act 1993 (SA) s 23(2)(b) 34 Young Offenders Act 1993 (SA) s 23(2). 35 (1979) 22 SASR 133. 36 (1979) 22 SASR 133, 136. 37 [2003] SASC 424 at [49]. 38 Sentencing Act 2017 (SA) s 45(4). 39 Sentencing Act 2017 (SA) s 26(1) 40 [2016] SASCFC 66 at [16]. 41 “Ruby’s” provides a live-in service designed to provide initial respite to the family with a view to transitioning the youth back to the family. Sadly, where there is literally no-one to take the youth, an “abandoned in custody” notification is made to the Department for Child Protection, who may instigate child protection proceedings.

LEGALSUPER

Providing peer-to-peer mental health support ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER

ndrew Proebstl: Your organisation, Mental Health First Aid Australia (MHFA), puts an emphasis on how colleagues can help each other with mental health challenges in the workplace. Why do you place such an emphasis on peer-to-peer support? Dr Claire Kelly: People can initially be really uncomfortable disclosing information about their mental health to their employer. There can be a real fear about possible impacts on their employment, or their career, perhaps an assumption that they can’t handle their job. There’s a fear that it may become a permanent mark on their record, that they won’t be offered leadership positions or challenging tasks. Talking to a trusted colleague can be easier. Also, when it comes to physical first aid, we don’t usually mind too much who helps out. If you sprain your ankle in the office, you want someone competent at first aid to wrap it up for you, but you may not worry about knowing or trusting them. With mental health, it’s easier to talk to someone you have good rapport with. This is why it’s important to have several people in the workplace who can have mental health first aid conversations. You might be comfortable to have a supportive conversation with a colleague who has a similar role to yours but having a similar conversation with a junior employee could be misinterpreted as a performance management discussion. Having concerns about your own line manager could be even more complicated. Your employer has a clear and important role to play in helping staff with mental health problems, but often the first step involves seeking peer-to-peer support so the more that your staff know how to handle these issues, the better it is for everyone. AP: During COVID-19, many people have worked from home. What mental health challenges has this presented? CK: To start with, people were juggling more roles than ever. On top of their own

jobs and responding to new work demands, many parents were home-schooling children. The natural social supports we rely on were inaccessible, along with many services. There was also fear about the pandemic itself. People were worried about family and friends falling ill and hearing a lot of very frightening news from overseas. This all adds up to a huge number of stressors, with no end in sight. This sort of stress has a negative impact on both mental and physical health. Loneliness and isolation are harmful as well, and negative coping strategies such as drinking more alcohol, poor sleep hygiene and working long hours may be easier to reach for, with fitness centres closed and social distancing making it hard to connect. AP: As people consider transitioning back to working from the office, what mental health challenges does this transition process present, what can employers do for staff, and what can colleagues do for each other? CK: A sudden shift back to the office will be harder for some than the transition to working from home. A gradual return to the office, working from home on set days, and encouraging people to avoid working very long hours can all be helpful. Consider options for employee well-being programs. There are great resources for workplaces – SuperFriend (https://www. superfriend.com.au/) and Smiling Mind (https://www.smilingmind.com.au/) have excellent programs. Watch out for anyone who may be struggling. Mood changes, sleep difficulties, lack of self-care and withdrawal are all signs that there may be a mental health problem developing. People can go to a lot of effort to conceal their struggles, so make sure to spend some informal one-on-one time with colleagues you think might be having a tough time. MHFA Mental Health First Aid courses tailored to legal professionals are available in a blended format, with eLearning and

Dr Claire Kelly

a component delivered via videoconference. MHFA courses equip participants to recognise signs that someone they care about may have a mental health problem, have a supportive conversation, and encourage the person to seek professional help. More serious situations such as responding to thoughts of suicide are also covered in the course. You can find a course at www.mhfa.com.au or MHFA can find an instructor to run a course for you. ANDREW PROEBSTL is Chief Executive of legalsuper, Australia’s industry super fund for the legal community. He can be contacted on ph 03 9602 0101 or via aproebstl@ legalsuper.com.au. DR CLAIRE KELLY is the Director of Research and Curriculum at Mental Health First Aid International, a not-forprofit health promotion charity providing mental health education in Australia and beyond. Dr Kelly can be contacted on 03 9097 0200 or via mhfa@mhfa.com.au This information is of a general nature only and does not take into account your objectives, financial situation or needs. You should therefore consider the appropriateness of the information and obtain and read the relevant legalsuper Product Disclosure Statement before making any decision. B November 2020 THE BULLETIN

TAX FILES

No thanks! Effective Disclaimer of a Trust Entitlement JOHN TUCKER, DW FOX TUCKER LAWYERS

ttempts to disclaim an entitlement to trust, income or capital have arisen in various contexts for various reasons. The contexts often include receipt of an unexpected and unwanted income tax assessment, perhaps by reason of the beneficiary being a member of a class of default beneficiaries. Issues have arisen as to how a disclaimer must be made, from when it will operate, in particular can it operate retrospectively, and what must be disclaimed for it to be effective. The recent decision of the Full Federal Court in Carter and Oâ&#x20AC;&#x2122;s v FCT1 is the latest in a line of cases where the effectiveness of disclaimers by trust beneficiaries was an issue. The relevant principles applicable to a disclaimer were largely explained by the Full Federal Court in FCT v Ramsden2. The Full Court in Carter approved the summary of those principles made by the Administrative Appeals Tribunal in its decision appealed from3 as follows: a. until disclaimed, a beneficiaryâ&#x20AC;&#x2122;s entitlement to income under a trust remains effective and attracts the operation of s 97 of the 1936 Assessment Act from the moment it arises even if the beneficiary is unaware of it;4 b. an effective disclaimer of a gift or an entitlement: i. operates by way of avoidance, not disposition,5 and ii. defeats the donorâ&#x20AC;&#x2122;s intention to give the relevant property to the donee, or create an interest in that property in favour of the donee, on the terms of the donor intended;6 c. because of (b), a beneficiary may disclaim an entitlement on becoming aware of it, with the effect that the disclaimer operates retrospectively as if the entitlement never arose, and not as an acceptance and disposition at the time of the disclaimer;7 d. there must be a complete rejection of the gift or entitlement for the disclaimer to be effective because a

36 THE BULLETIN November 2020

h. i.

qualified disclaimer may be seen as or constitute a form of acceptance of or assent to the gift or entitlement,8 and in this regard it becomes necessary as a matter of construction to identify what the relevant gift is;9 a periodical (usually annual) appointment or distribution of income or capital from a discretionary trust by reason of exercise of discretionary powers to do so is a stand-alone gift, or creation of an entitlement, when the power is exercised;10 each appointment or distribution being an independent gift or creation of an entitlement, an object of a discretionary trust is entitled to accept or reject a discretionary appointment or discretion of either income or capital, and may accept one or more and disclaim others;11 an entitlement as a taker in default of appointment is a vested interest liable to be divested by exercise of a discretion, and is a gift or entitlement that arises by operation of the terms of the trust separate from any gift or entitlement that might arise upon exercise of a discretionary power of appointment or discretionary power to distribute;12 an entitlement of a taker in default of appointment can also be disclaimed;13 one gift or entitlement having the same general origin, in the sense of coming from the same trust estate, can be retained and another disclaimed, and the fact of retention of an earlier one does not automatically prevent future disclaimers of later gifts or entitlements.14 However, the retention of one type of gift or entitlement may have an impact on assertions as to knowledge of the relevant trust and entitlements, and whether there has been a delay in disclaiming that prevents a subsequent disclaimer operating to avoid the gift or entitlement.15 It follows that disclaimer of one gift or entitlement would similarly not automatically prevent a

future disclaimer of a different gift or entitlement, but would have the same effect on assessment of relevant knowledge going to whether there has been delay and whether a subsequent disclaimer operates to avoid the gift or entitlement; j. to disclaim a gift or entitlement as a taker in default of appointment, it is necessary to disclaim the entirety of the gift or entitlement, namely the gift or entitlement created by the terms of the trust, and not the annual manifestation of it arising upon a failure to appoint elsewhere. An attempt to disclaim year by year without disclaiming the gift or entitlement in a manner that disclaims it entirely and permanently is ineffective;16 k. a beneficiary loses the right to disclaim the gift or entitlement if it is accepted;17 l. a gift or entitlement can be accepted by overt conduct;18 and m. failure to disclaim within a reasonable period of becoming aware of a gift or entitlement can, having regard to the circumstances of the case, be treated as tacit or inferred acceptance of the gift or entitlement.19 It is necessary to look at all of the circumstances and the time that has elapsed to see whether acceptance of the gift or entitlement should be inferred from the absence of dissent;20 and n. a beneficiary of a gift is fixed with knowledge of the gift and its basis vicariously on the basis that the knowledge of an adviser, which may be the only source or repository of relevant knowledge.21 The issue in Carter was that the trustees of the Whitby Trust had made resolutions to distribute the income of the trust which the ATO, on a later audit, challenged as ineffective. The result was that assessments issued as to 80% of the net income of the trust to the trustee under section 99A of the ITAA 1936 and as to 20% to the default income beneficiaries who comprised four adult and one minor siblings.

TAX FILES

The assessments covered the years 2001 to 2013 (the First Period) and 2014 (the Second Period). The four adult beneficiaries had executed Deeds of Disclaimer in June 2014 (the First Disclaimers) in respect of the income for the First Period, in November 2014 (the Second Disclaimers) in respect of the income for the Second Period and in September to October 2016 (the Third Disclaimers) in respect of all entitlements from the trust. The Second Disclaimers were in the same terms as the First Disclaimers but the ATO decided the Second Disclaimers were ineffective and, as a result, the Third Disclaimers were executed. The Full Federal Court was only concerned with the assessments with the 2014 year, it upheld the AAT’s adverse finding that the net income of the trust had not been validly appointed to the other beneficiaries and hence fell to the default beneficiaries but overturned the AAT’s decision that the default beneficiaries had not validly disclaimed their entitlement to the income for the Second Period. Before the AAT the Commissioner had not challenged the Third Disclaimers as effective to disclaim the applicants’ interests under the Trust Deed. The Full Court considered this correct. The issue which the AAT decided against the applicants was that the entitlements to income had nevertheless been implicitly accepted by then. It inferred that by their conduct in executing the First and Second Disclaimers before executing the Third Disclaimers, the applicants had tacitly accepted the entitlements. This finding was made in the face of evidence given by all the applicants that in executing these disclaimers they intended to disclaim all entitlements to the interests, as the Third Disclaimers were effectively worded to do on their execution. The Full Court held that in this finding the AAT had operated on an unstated erroneous premise that an ineffective disclaimer of a gift, as a

matter of principle, necessarily involved a tacit acceptance of the gift, rather than determining that issue by reference to the relevant facts and circumstances. The AAT had also asserted that the applicants delay in disclaiming in effect necessarily meant that income could not be effectively disclaimed. The Full Court however confirmed that the relevant issue is “whether in all the circumstances acceptance of the gift should be inferred from the absence of dissent from the donee, and the passage of time”.22 It rejected the existence of any principle, as apparently assumed by the AAT, that a delay in disclaiming necessarily involves a tacit acceptance of a gift. Where there was no express acceptance of a gift, implicit or tacit acceptance is a matter of inference and presumption on the particular facts.23 On the facts here the Full Court held that there was only one conclusion reasonably open, the applicants’ conduct was consistently directed to the one end of rejecting any right to any income from the trust. The Commissioner had also contended for confirmation of the AAT decision on the grounds that the Second and Third Disclaimers did not have retrospective operation for the purposes of s97 of the ITAA 1936. This was rejected on the basis that the disclaimers operated by way of avoidance, rather than by way of disposition.24 Once the entitlements were held to have been disclaimed the consequence was that s97 was not engaged because it fixed liability on a beneficiary only where the beneficiary had a present entitlement to income under a trust and, while that entitlement was operative for s97 from the moment it arose, on disclaimer the general law extinguished it as initio and the Commissioner was bound to treat the beneficiaries as not entitled to the income for the purposes of s97. In holding this the Court noted that the tax consequences of a disclaimer are determined by reference to the general laws25 and not by reference to legal relationships then in existence.26

While it has been argued that effecting a valid trust interest disclaimer is out of the reach of the average taxpayer by reason of the demands of onus of proof, requirements for positive, timely, unequivocal and intentional action, premised on actual knowledge of the entitlements, when the tax consequences of the entitlement is mostly not known when that knowledge is gained27, the Full Court judgement in Carter does recognise some circumstances where a disclaimer can be28 effective. Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia B Endnotes 1 [2020] FCAFC 150, Jagot, Davies and Thawley JJ, 10 September 2020 (Carter) 2 [2005] FCAFC 39, Lee Merkel and Healy JJ, 15 March 2005 (Ramsden) 3 The Trustee for the Whitby Trust v C of T [2019] AATA 5637 4 Ramsden at [30] 5 Ramsden at [45] 6 Ramsden at [45] 7 Ramsden at [30] 8 Ramsden at [31] 9 Ramsden at [31] 10 Ramsden at [35] and [36] 11 Ramsden at [36] 12 Ramsden at [37] 13 Ramsden at [40] and [61] 14 Ramsden at [37] 15 Ramsden at [37] 16 Ramsden at [42] 17 Ramsden at [51] and [52] 18 Ramsden at [53] 19 Ramsden at [53] and [55], Lewski v Commissioner of Taxation (2017) 254 FCR 14 at [141] 20 Ramsden at [55] 21 Ramsden at [59] 22 Ramsden at [55] 23 JW Bloomhead (Vic) Pty Ltd (in Lia) v JW Bloomhead Pty Ltd [1985] VR 891 at 930-931 24 The Paradise Motor Co Ltd [1968] 2 All ER 625 25 C of T v Thomas [2018] HGA 31; 264 CLR 382 at 407-8[54] per Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ; 417 [93] for Gageler J. 26 Cf Smeaton Grange Holdings Pty Ltd v CSR (NSW) [2016] NSWC 1954 at [146] per Sackville AJA 27 Frederick Mahar, Present entitlement and the dissenting beneficiary, Taxation in Australia Vol 53(ii), June 2019 600 at 604 28 Contrast the AAT decision in The Beneficiary and Commissioner of Taxation (Taxation) [2020] AATA 3136 26 August 2020

November 2020 THE BULLETIN

OPINION

SA’s proposed scheme to monitor places of detention needs to be improved ASSOCIATE PROFESSOR LAURA GRENFELL, ADELAIDE LAW SCHOOL

hose who are out of sight should not be out of mind. In recent years South Australia has seen failures in its systems designed to safeguard those who are in vulnerable situations and out of public sight– think of our child protection system and our older persons’ mental health system. The failures identified by the Chloe Valentine and Oakden inquests revealed instances of abuse and neglect which could be fairly described as cruel, inhuman or degrading treatment. SA cannot afford to be complacent by devising schemes which are ill-conceived and the subject of little, to no, consultation. An external mechanism to proactively monitor our state’s closed facilities is warranted given that systems can often fail to adequately uphold agreed-upon standards (or lack adequate standards) for those who are in care or detention. Every jurisdiction in Australia is currently in the process of establishing such a mechanism because, after abuses at the NT’s Don Dale Youth Detention Centre received international attention, the federal Coalition government ratified an international agreement, the Optional Protocol to the Convention against Torture (OPCAT), in late 2017. OPCAT is designed to complement our existing state mechanisms such as the Ombudsman SA

38 THE BULLETIN November 2020

which investigates, in a reactive manner, complaints made by those in detention. For the new scheme to benefit our state, it needs to work alongside our existing oversight bodies, to be fully independent (and perceived as such), and have clear power to access all relevant information and places of detention. In mid-May this year, the South Australian government introduced a half-baked scheme to meet the state’s OPCAT obligations. It was one of a raft of amendments in SA’s Correctional Services (Accountability and Other Measures) Amendment Bill 2020 which passed the House of Assembly on 22 July and is currently in the Upper House. (The amendments are largely the same as those introduced into the SA Parliament by the then Labor government in late 2017 before Australia ratified OPCAT.) It would not be surprising if you were unaware of this development: the introduction of this particular legislative response to OPCAT was not reported in the media. More critically, it was preceded by zero consultation with key stakeholders in the state despite the amendments being described in the second reading speech as “significant”. This is in the face of the fact that for years these stakeholders have been tirelessly calling for a local OPCAT

mechanism - known as a national preventive mechanism (NPM) - and contributing to national consultations headed by the Australian Human Rights Commission as well as the Commonwealth Ombudsman (who has been designated as the coordinator of the NPMs being established in each jurisdiction). These NPMs will work with the international monitoring body, the UN Subcommittee on the Prevention of Torture (SPT) which will conduct supervisory visits to each Australian jurisdiction every 4-8 years. The proposed new monitoring scheme of “official visitors” will replace the state’s so-called “independent inspectors scheme” which has languished for more than a decade due to its poor design. The state’s proposed new OPCAT-style scheme has some strengths: it sets out that the Governor will appoint a diverse group of remunerated visitors including at least one legal practitioner, one woman and one Aboriginal or Torres Strait Islander person (it excludes only those persons who become a member of an Australian parliament, become a bankrupt or who is convicted for an offence or serving a prison sentence). Previously the inspectors were volunteers, most of whom are justices of the peace. Since at least 2012 the government has been made aware, via an audit report of Ombudsman SA, that

OPINION

this scheme has been under-performing because the inspectors “are perceived to be identified with the department”.1 Under section 20D of the new scheme, the official visitors are to conduct visits and inspections of our correctional institutions (which covers adult prisons and “police prisons” but not prison transport vehicles etc). They are to “inquire into, investigate and provide advice to the Minister or the CE [Chief Executive of the Department of Correctional Services] on any matter relating to the management of the correctional institution, or the care, treatment or control of the prisoners”. This can be on their own initiative or on a referral by the Minister or the CE. Furthermore, they can make recommendations for the purposes of “promoting the high quality care, treatment and control of prisoners” in these institutions. They can speak with prisoners and consider information and materials “in private”. Section 20A (1) states: “an official visitor must act independently, impartially and in the public interest” and further that neither the Minister nor the CE can “control how an official visitor is to exercise” their “functions and powers” or “give any direction with respect to the content” of any visitor report.

The main problem with the design of the proposed new scheme is that it does not sufficiently guarantee the independence of the official visitors. This independence is seriously compromised by the fact that under s 20B of the Bill, the CE of the Department of Correctional Services (DCS) determines the “remuneration, allowances and expenses” of the official visitors while under s 20C the Minister “must provide” the visitors with “the resources reasonably required”. At this point it is worth remembering that the visitors’ role is to monitor how DCS does its job in terms of the treatment of those in detention. It is Public Law 101 to understand that an oversight body is not likely to be able to fulfil its functions if it is being resourced and remunerated by the same body it is tasked with monitoring. Independence is the lynchpin of the OPCAT scheme. Under Article 18 of OPCAT, Australia has agreed to “guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel”. This means that the state NPM needs to enjoy “complete financial and operational autonomy”.2 In light of this, Western Australia has given the OPCAT monitoring role to its Ombudsman and its Office of the Inspector of Custodial Services, the latter of which

is an independent statutory department receiving its budget direct from Treasury. In WA, both oversight bodies report directly to Parliament unlike SA’s proposed mechanism. In terms of staffing and autonomy, the SPT has recommended that the NPM needs its own secretariat and staff and the ability to bring in external consultants with skills sets covering areas such as mental health and wellbeing. It has explained that ‘the State should ensure the independence of the NPM by not appointing to it members who hold positions which could raise questions of conflicts of interest’.3 In other words, official visitors should not include those who presently serve the government or government agencies. This clearly excludes from the NPM those who presently work in the criminal justice system (including DCS) or law enforcement or who are on short-term leave or secondment from these parts of government. In other words, the NPM requires full operational and financial autonomy with regard to its staff. Without this, is very difficult, if not impossible, for the mechanism to take a systematic and planned approach to preventing torture or treatment which is cruel, inhuman or degrading in our prisons. A second problem is that the new proposed scheme pays insufficient November 2020 THE BULLETIN

OPINION

attention to the careful design of the OPCAT system as a proactive and preventive mechanism which conducts regular and comprehensive visits, both announced and unannounced. The SA proposed mechanism muddles this careful design by requiring that official visitors double up on existing functions. For example, in addition to monitoring, they are to “receive and investigate any complaint of a prisoner in the correctional institution” and that they “act an as advocate for prisoners … to promote the proper resolution of issues”. Complaint handling role is a reactive role and is currently well covered by the Ombudsman SA. Advocacy is the territory of various non-governmental organisations such as OARS. The functions of monitoring, complaint handling and advocacy should not be mixed. The Ombudsman may conduct a brief inspection of a correctional institution to follow up a complaint of ill treatment. This contrasts

40 THE BULLETIN November 2020

with a lengthy, comprehensive and proactive OPCAT-style visit in order to make system-wide recommendations to Parliament as to how changes to policy or law could prevent or reduce the risk of cruel, inhuman and degrading treatment or torture. Unless amended, the new scheme will burden official visitors with too many functions, particularly already those covered by existing bodies, dilute their role and impede their ability to effectively monitor our correctional institutions. A third problem is that the official visitors do not have adequate powers to fulfil their monitoring function. The proposed SA scheme sets out the functions of the official visitors but it does not explicitly articulate their powers. Under OPCAT, it is expected that visitors/monitors have the power to access all relevant data bases as well as all places of detention on an unannounced and immediate basis if they wish. This means they should be able to arrive at a

correctional institution and, without delay, commence an inspection which includes all parts of the institution as well as its databases. Section 20E, entitled “provision of information to official visitor”, is clumsily drafted in providing that the official visitor must “by notice in writing” require the provision of information from a government or non-government organisation. This indicates an impractical approach which would give correctional institutions time to tidy up their territory before an inspection of documents or an institution takes place. This undermines one of the key aims of the OPCAT mechanism which is to increase transparency and reduce the cover-up culture which can thrive in our places of detention because they are out of public sight. The Bill needs to be amended. It needs to ensure that both the remuneration and resources of the official visitors come from a budget directly allocated to them

OPINION

by Treasury or Parliament. It needs to ensure that official visitors are perceived as independent by ensuring they are ring-fenced away from DCS. It needs to separate the function of monitoring from other extraneous functions such as complaint handling and prisoner advocacy. It needs to clearly set out the powers of the official visitors so that these powers are not uncertain and impractical for effectively carrying out their functions. Furthermore, the proposed scheme needs to ensure the visibility of the state’s NPM as a key player in the prevention of ill-treatment and torture in our prisons. This visibility and transparency is important if the NPM is to enjoy both credibility and legitimacy. Overall there is likely to be savings to government if it can get the design right from the start. We can see this by looking north: the many inadequacies in the Northern Territory’s youth justice detention system has led to much harm, expensive inquiries and avoidable costly litigation. In June the High Court found in Binsaris v NT4 that four youth detainees in the Don Dale Youth Detention Centre had been subjected to the use of tear gas and were entitled to damages on the basis that it constituted battery. The case, one of a series, indicates that the relevant NT authorities had unlawfully used weapons on youth detainees. The Court held that corporal punishment is not a permitted

“use of force” under the NT youth justice legislation. Such systemic problems in places of detention could be proactively identified via external monitoring by independent and qualified experts conducting regular visits with full powers of access. Leaving these systemic problems to be resourced by a Minister and their department which has other, sometimes competing, priorities can lead to personal harm, expensive litigation and potentially hefty damages. This year South Australia became the last Australian jurisdiction to end the use of spithoods in youth detention - it was slow to act even after a finding by the NT Supreme Court that placing a spithood on a youth detainee is an act of battery. Similarly, South Australia’s Department of Correctional Services has been slow to adopt soft shackles for prisoners in hospital, even for women in childbirth. South Australia needs to devise smarter methods of dealing with problematic behaviour, by finding methods that do not constitute cruel, inhuman and degrading treatment – or lead to expensive litigation and payouts. Resourcing this external monitoring and ensuring it is independent and rigorous will pay off. It is a disservice to South Australians that the government chose not to undertake any consultation with key stakeholders on this important mechanism.

The government has made insufficient effort to ensure that the mechanism is financially autonomous, that it will be perceived by all as independent, that it has adequate powers and clear, unimpeded monitoring functions. The Minister’s second reading speech for these “significant amendments” is all too brief and offers little transparency. It is as if the government did not want to draw attention to the new scheme even though, despite its inadequacies, it is a clear improvement on the existing broken scheme. Instead of allowing the government to ram through this halfbaked scheme in the hope that problems can be corrected later, it is worth the Upper House giving this mechanism some proper attention so that the state does not introduce yet another inadequate scheme and then need to fund a string of inquiries as well as defend costly litigation. B

Endnotes 1 Ombudsman SA, An Audit of Prisoner Complaint Handling in the SA Department for Correctional Services (June 2012) p37. 2 Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, Guidelines on National Preventive Mechanisms, (9 December 2010) UN Doc. CAT/ OP/12/5, para 12. 3 As above, para 18. 4 [2020] HCA 22.

MEMBERS ON THE MOVE SUZANA JOVANOVIC

JK Legal, a boutique law firm focussing on representation on behalf of South Australian employers, have recently expanded their team. Joining the firm in recent months are Suzana Jovanovic and Oliver Fragnito. Both Suzana and Oliver join the firm with past experience on “the other side of the fence”, having previously practised with several prominent plaintiff legal firms in Adelaide. Suzana has been active in many

extra-curricular activities, including being a finalist in the South Australian Law Society’s Young Lawyers of the Year Award, and twice nominee in the Seven News Young Achiever Award. Oliver is a budding road cyclist. Their work will involve them assisting KJK Legal’s Directors in providing advice to their significant workers’ compensation self-insurer clients and across their general client base in relation to both workers compensation and work, health

OLIVER FRAGNITO

and safety matters. Managing Director of KJK Legal, Mark Keam, said “While 2020 has been a particularly challenging year for our firm because of the ongoing pandemic, and also the tragic loss of one of our valued team members, we are excited to be again increasing the size of our team, and look forward to Suzana and Oliver both growing as legal practitioners and valued members of the community in the years to come”. November 2020 THE BULLETIN

FAMILY LAW CASE NOTES

Family Law Case Notes CRAIG NICOL, THE FAMILY LAW BOOK PROPERTY – HUSBAND FINED $54,000 FOR BUYING $180,000 OF CRYPTOCURRENCY IN BREACH OF AN INJUNCTION

n Lescosky & Durante [2020] FamCAFC 179 (28 July, 2020) Strickland J, sitting in the appellate division of the Family Court of Australia, heard a case where the husband breached an injunction 18 times, purchasing $180,000 of cryptocurrency, for which he was fined $54,000. The husband appealed, arguing that the Magistrate had not taken into account the “totality principle”. Strickland J said (from [13]): “… [I]t is not the case that the court … must apply any so-called principle of sentencing … apart of course, from what appears in the Family Law Act 1975 (Cth) (…) [15] Thus, it is not open for the husband to assert error by the Magistrate in failing to follow the ‘totality principle’, or failing to apply s 6 of the Sentencing Act 1995 (WA) or s 16A of the Crimes Act 1914 (Cth). Further, there is ample authority to the effect that ‘review of the punishments in other cases is of limited assistance, as each case really depends upon the Court’s assessment of the relevant facts ( … ) [17] The task for her Honour was to fix a sanction or sanctions that her Honour considered to be the most appropriate in the circumstance (s 112AD). ( … ) [21] What … her Honour did was impose a fine of $3,000 for each of the 18 contraventions, and aggregate those fines, arriving at a total fine of $54,000. ( … ) [25] … [H]er Honour did what the husband said the sentencing principles and the decided cases required her to do. … [S]he identified the maximum allowable fine for each contravention … concluding ‘that the maximum prescribed limit for each contravention is not appropriate given the number of admitted contraventions and the quantum of funds involved’. Her Honour added that she was ‘mindful that the fine is at the lower end of the spectrum

42 THE BULLETIN November 2020

for each individual breach, however the total is a significant sum’ ( … ) [26] That approach accords with what the husband has described as the ‘totality principle’ ( … )” The husband’s appeal was dismissed.

PROPERTY – BANKRUPT DE FACTO PARTNER PRECLUDED FROM MAKING SUBMISSIONS AS TO EXISTING EQUITABLE PROPRIETARY INTEREST In Walford & Bantock and Anor [2020] FamCAFC 210 (21 August, 2020) the Full Court (Ainslie-Wallace, Watts & Austin JJ) heard a case where a de facto husband had brought property adjustment proceedings while the de facto wife was bankrupt. As ss 90SM(15) and (16) prevents a bankrupt from making submissions as to vested property without leave and where the bankrupt must establish “exceptional circumstances” for such leave, the bankrupt unsuccessfully argued that she should be granted leave to make submissions as to her having an equitable interest in the de facto husband’s real property. Austin J said (from [16]): “[The de facto husband, respondent] … seeks an order granting him exclusive title to the home so … he denies that the applicant enjoys any equitable interest in the home … [17] If the [de facto wife] applicant is subsequently found not to have any equitable interest in the home then any share in its title which is settled upon her by an adjustment order made in the exercise of discretion under Part VIIIAB of the Act does not constitute ‘afteracquired property’ under the Bankruptcy Act and did not vest in the trustee. The reason for the distinction is that the applicant’s proprietary interest in the home is only created by the Court’s ultimate exercise of statutory discretion; not recognised by the fulfilment of an equitable cause of action ( … ) [20] ( … ) The embargo under s 90SM(15) of the Act only precludes the

applicant from making submissions at trial ‘in connection with’ any existing equitable proprietary interest she enjoys in the home, as that would be ‘vested bankruptcy property’ and therefore the exclusive province of argument between the trustee and the respondent. The applicant is not precluded by the ruling from making final submissions about her entitlement to nonvested property under the provisions of Part VIIIAB of the Act. [23] Not only is the appealed order interlocutory in nature, it … pertains to practice and procedure … Accordingly, particular caution should be exercised in granting leave to appeal from it ( … )” Watts and Ainslie Wallace JJ agreed, dismissing the application for leave to appeal.

PROPERTY – NO ERROR IN COURT’S REFUSAL TO DISJOIN CORPORATE TRUSTEES OF FAMILY TRUSTS In E Pty Ltd and Ors & Zunino and Anor [2020] FamCAFC 216 (1 September, 2020) the Full Court (Ainslie-Wallace, Ryan & Tree JJ) heard a case where a wife had named three companies as respondents, of which the husband was a former director. The wife sought declarations that each entity held real estate on trust for her; each company having sought orders for disjoinder. The Full Court said (from [13]): “The [corporate] appellants carefully established that although the husband had been a director of the entities … he had never had explicit legal title to the entities. Senior counsel for the wife … explained that … the husband was the controlling mind and the entities his alter ego … To this end, the wife pointed to a raft of ‘uncommercial’ transactions and what she said were the spouse party’s more or less exclusive use of the subject properties. ( … ) [18] In deciding against the appellants, the primary judge took into account the circumstantial nature of the wife’s case … [I]t is tolerably clear that his Honour thought … the wife’s case appeared weak

FAMILY LAW CASE NOTES

… but … he was not satisfied that she had no reasonable likelihood of establishing that the husband exercises effective control over the entities as his alter ego ( … ) [24] We … agree with the primary judge that as the appellants ‘may’ be directly affected by the wife’s case raised against them … they are necessary parties (r 6.02) … Plainly … the appellants ‘may’ be deprived of their beneficial ownership of valuable property … [25] His Honour’s decision to reject the appellants’ application to be removed as parties was correct … ”

Where the mother’s attempt at filing an Initiating Application had been rejected by a Registrar, she argued that the decision should be set aside pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”). The Court said (from [15]): “ … The only basis upon which the Registrar could have acted when not accepting the initiating application for filing was that it was an abuse of process or was frivolous, scandalous or vexatious. I found that the application was not an abuse of process … It was plainly not frivolous or vexatious. ( …. ) [18] Ellwood & Ravenhill [2019] FamCAFC 153 compels the conclusion that the filing of a s 60I(7) certificate is not a necessary condition of the Court’s jurisdiction under Part VII of the Family Law Act. In that case … Kent J held that a failure to file a s 60I(7) certificate with an application for orders under Part VII did not deprive the Court of jurisdiction in the application. His Honour recognised at [31] that a consideration of the matters raised in s 60I(9) might be required in

CHILDREN – REGISTRAR’S REFUSAL TO FILE INITIATING APPLICATION DUE TO NON-PROVISION OF A S 60I CERTIFICATE SET ASIDE In Valack & Valack (No. 2) [2020] FCCA 1799 (2 July, 2020) Judge Jarrett held that a Registrar lacked power to reject an Initiating Application on the basis of the non-provision of a section 60I certificate, as the exemptions set out at s 60I(7) required a decision “by a judge or Registrar in existing proceedings”.

a particular case and that could only happen in the context of an extant proceeding. … [19] It was an error to refuse the filing of the initiating application on the basis that there was no operative s 60I certificate. That error engages ss 5(1)(d), 5(1)(e) and 5(1)(f) of the AD(JR) Act. I am satisfied that the Registrar’s decision to refuse to file the initiating application was a decision that was not authorised by either the Family Law Act or the Federal Circuit Court Rules. … (…) [20] Further, I am satisfied that the decision to refuse the filing of the document was an improper exercise of the power conferred by FCCR 2.06 because it took into account an irrelevant consideration, namely whether the application was accompanied by a s 60I(1) certificate. … ” The Registrar’s decision to not file the initiating application was set aside, the Court deeming it to have been filed on the day it was lodged on the commonwealth courts portal. B

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FEATURE

Pro bono legal assistance for asylum seekers PHOEBE RICHARDS, MANAGING SOLICITOR, PRO BONO CONNECT, JUSTICENET SA

he challenges for asylum seekers engaging in the Australian legal system are immense. Australian migration law is complex for anyone (legally trained or otherwise) but for those seeking asylum, language and cultural barriers, as well as limited access to support services and a history of trauma, significantly compound this complexity. Those seeking asylum in Australia have certain legal rights, including a right to judicial review following a negative assessment of their claims for protection. However, without assistance the challenges this group face can mean in practice, it is simply not possible for them to meaningfully exercise those rights. It was in this context that in 2012, JusticeNet first established its specialist pro bono referral service - the Refugee and Asylum Seeker Project. The project was aimed at meeting the legal needs of asylum seekers living in South Australia by providing them access to pro bono legal assistance. JusticeNet at that time was concerned that without skilled assistance, genuine refugees could be wrongly refused protection. In 2014, this need increased with the introduction of the Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload Act) 2014 (Cth) which allowed around 30,000 asylum seekers – the “Legacy Caseload” – who had arrived in Australia between 13 August 2012 and 1 January 2014 to apply for a Temporary Protection visa (TPV) or a Safe Haven Enterprise visa (SHEV). This legislation led to a surge in requests from asylum seekers for help to exercise their judicial review rights.

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Since 2012, JusticeNet has fostered a dedicated network of over 80 volunteer lawyers, including solicitors (from both private and public practise), barristers and academics who accept pro bono referrals to assist asylum seeker clients. In 2018, funding limitations required JusticeNet to scale back the Refugee and Asylum Seeker Project. Today, JusticeNet continues to provide assistance for asylum seekers as part of its generalist pro bono referral service (Pro Bono Connect). While this rationalisation did require JusticeNet to scale back the scope of assistance it provides to asylum seekers, JusticeNet has been able to maintain a high number of referrals to our assisting network of lawyers. In 2020, most of the applicants applying to JusticeNet for assistance with their protection visas are from the “Legacy Caseload”. Relevantly, these applicants are not afforded the usual merits review rights which applicants for other visas have in Australia. Instead, they are subjected to a ‘fast-track’ process, which means that if their asylum claim is rejected at the Department level, they do not have recourse to normal merits review procedures. Instead, fast-track applicants undergo a limited form of merits review before the Immigration Assessment Authority (IAA). The IAA usually makes its decision on the applicant’s protection visa on the papers without a hearing. Any new information presented to the IAA is also not considered unless there are ‘exceptional reasons’ for considering the new information. Given this, many of these judicial review matters centre on the

IAA’s decision on whether to accept new information. JusticeNet has also received a smaller number of applications from refugees seeking judicial review of decisions which have been made under section 501 of the Migration Act 1958 (Cth) to cancel or refuse them a protection visa on character grounds. These applications come from the Federal Court under Federal Court Rule 4.12. In South Australia, the arrangement was established with the Court and the South Australian Bar Association to provide additional support (particularly during the Covid-19 pandemic) to applicants who are in immigration detention and require pro bono legal assistance with their matters before the Court. In terms of the process, following receipt of an application, JusticeNet asks its network of pro bono lawyers to provide a legal opinion on the decision refusing the Applicant a protection visa and identify if there are reasonable grounds for making an application for judicial review. If the lawyer reviewing the case believes the Applicant has reasonable prospects of a successful judicial review application, JusticeNet then tries to find a lawyer to represent the Applicant in the judicial review case before the Federal Circuit Court. JusticeNet is exceptionally fortunate to be supported in this process with many lawyers taking on multiple merits assessments a year and then, when merit is found, running them through to final hearing. To give some indication of the level of support, in the three years between July 2017 and June 2020,

FEATURE

JusticeNet referred 213 refugee and asylum seeker matters for a merit advice and/or representation to pro bono lawyers. JusticeNet is proud to be able to assist asylum seekers living in South Australia and believes that given the awful consequences of a wrong decision – deportation back to the country from which they fled persecution – the work undertaken by our network of pro bono lawyers is of vital importance. Feedback from our network also suggests that the lawyers assisting also get a lot out of the matters. Alice Rolls of Lipman Karas has explained that: “Each referral is a rewarding experience for our lawyers and we

are privileged to be able to apply our legal skills to assist some of the most vulnerable members of our community. It is particularly rewarding to know that several applicants to whom we have provided advice have been successful in obtaining judicial review and having their matters referred back to the IAA for reconsideration.” JusticeNet is of course, always looking for more practitioners who have an interest or experience in this area to join our network. There are still about 7500 ‘fast track’ visa applications applied for and on hand at either the IAA or Department level nationally, and about 300 of those applicants are in South Australia. JusticeNet

expects there will be a need for pro bono legal merits advice for the new legacy caseload asylum seekers until at least mid2021. Further, with the substantial case load of judicial review applications relevant to the legacy caseload working its way through the Federal Courts, there will be continuing need for pro bono representation in judicial review proceedings with matters likely being listed for hearing dates well into 2022. Financial support for JusticeNet’s service for asylum seekers is generously provided by our member law firms, Lipman Karas and the Law Foundation. For more details about JusticeNet’s assistance for refugee and asylum seekers see https://www.justicenet.org.au/whatwe-do/rasp. B

Sparkle this Christmas 392 Henley Beach Road, Lockleys SA 5032 08 8351 8609 | info@villanijewellers.com.au November 2020 THE BULLETIN 45

WELLBEING & RESILIENCE

Could you be feeling better?

nce upon a time we might have been forgiven for thinking the only people who were talking to a mental health professional were people with a diagnosed mental illness or people in acute crisis. But these days we know this just isn’t the case. In fact, psychological concerns are now the most common topic people are raising with their GP’s.1 There are a multitude of reasons why we might benefit from expert support in this area of our health. For many people, the trigger might be that we (or someone close to us) have noticed that something has changed: • Changes in mood or more intense emotions than usual • Strain in personal relationships • Work performance deteriorating • Loss of enjoyment of activities we would normally enjoy • Changes in our sleep patterns or appetite • Nightmares • Using alcohol, caffeine and other substances more than usual • Physical symptoms such as recurring headaches The right kind of support can help us to make sense of what is happening and figure out the best way forward. Sometimes we are prompted to think about our mental health by a particular distressing event – something which has happened recently (or maybe not so recently), such as: • Breakdown of a significant relationship • Loss of a loved one • Issues with our employment or income • Traumatic event such as an assault There can be a lot to work through with such a life-changing event and sometimes well-meaning family members and friends are just not the best people to support us in the ways we need. There is also more talk than ever about maximising our resilience, performance and happiness. This pursuit can draw us to a relevant expert just as sports psychologists are now an essential component of elite athletic teams. Resilience is needed so that teams can

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Wellbeing & Resilience Committee

process their losses and bounce back to achieve better results next time. Having a focussed and positive mental state is essential for athletes to perform at their best. The rest of us can likewise benefit from enhanced resilience and performance in our everyday lives. And, well, happiness… Wouldn’t everyone like more of that? Whatever it is that is motivating people to seek out the support of a mental health professional, the demand is clearly not going anywhere. And yet stigma seems to remain, sometimes holding people back from getting the right help. We are happy to talk about attending our regular dental check up or having a skin cancer screen – so why do we talk and think about our mental health so differently? The good news is that there are now lots of different ways to access information and support – and we actually partly have COVID to thank for that! There are more online courses and chat services than ever before, various helplines and appointments via phone, and, of course, many people you can speak with in person. Our GP’s can be a great starting point for a conversation and possible referral. The Beyond Blue website is also a great resource for learning about the differences

between counsellors, psychologists, and the range of other professionals who can help us to be mentally well. Even better, the Law Society offers the LawCare service with Dr Jill. She is a GP with expertise in talking to lawyers about their mental health. You can access this service by contacting her pager on (08) 8110 5279 and leaving your mobile number so that an appointment can be made with you. You can access two free, completely confidential sessions with Dr Jill per financial year. Of course, mental health professionals are also incredibly valuable where someone does have a diagnosed condition or acute state of crisis to deal with. But the reality is that we now know that prevention is far more effective than a cure when it comes to most illnesses – both physical and mental. There is scope for all of us to safeguard our mental wellbeing for the future, so perhaps this regular health check-up needs to be added to our list. “What mental health needs is more sunlight, more candour, and more unashamed conversation.” – Glenn Close Endnotes 1 Royal Australian College of General Practitioners, General Practice: Health of the Nation, 2017.

GAZING IN THE GAZETTE

3 SEPT 2020 – 2 OCT 2020 ACTS PROCLAIMED Statutes Amendment (Electricity and Gas) (Energy Productivity) Act 2020 (No 25 of 2020) Commencement: 1 October 2020 Gazetted: 10 September 2020, Gazette No. 73 of 2020 Waite Trust (Vesting of Land) Act 2020 (No 24 of 2020) Commencement: 10 September 2020 Gazetted: 10 September 2020, Gazette No. 73 of 2020 Criminal Law (Legal Representation) (Reimbursement of Commission) Amendment Act 2020 (No 16 of 2020) Commencement: 1 October 2020 Gazetted: 24 September 2020, Gazette No. 76 of 2020

ACTS ASSENTED TO Single-use and Other Plastic Products (Waste Avoidance) Act 2020, No. 27 of 2020 Gazetted: 17 September 2020, Gazette No. 75 of 2020 Controlled Substances (Confidentiality and Other Matters) Amendment Act 2020, No. 28 of 2020

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA

Gazetted: 17 September 2020, Gazette No. 75 of 2020 Fair Trading (Repeal of Part 6A-Gift Cards) Amendment Act 2020, No. 29 of 2020 Gazetted: 17 September 2020, Gazette No. 75 of 2020 COVID-19 Emergency Response (Expiry and Rent) Amendment Bill 2020, No. 30 of 2020 Gazetted: 25 September 2020, Gazette No. 77 of 2020 State Procurement Repeal Act 2020, No. 31 of 2020 Gazetted: 1 October 2020, Gazette No. 78 of 2020 Legal Practitioners (Senior and Queen’s Counsel) Amendment Act 2020, No. 32 of 2020 Gazetted: 1 October 2020, Gazette No. 78 of 2020 Sentencing (Serious Repeat Offenders) Amendment Act 2020, No. 33 of 2020 Gazetted: 1 October 2020, Gazette No. 78 of 2020 Statutes Amendment (Attorney-General’s Portfolio) Act 2020, No. 34 of 2020 Gazetted: 1 October 2020, Gazette No. 78 of 2020

APPOINTMENTS Judge District Court of South Australia Environment, Resources and Development Court of South Australia effective from 6 October 2020 Karen Nadiene Thomas Gazetted: 1 October 2020, Gazette No. 78 of 2020 Ordinary Member South Australian Civil and Administrative Tribunal On a sessional basis for a term commencing on 4 October 2020 and expiring on 30 March 2024 Joanna Catherine Richardson Gazetted: 1 October 2020, Gazette No. 79 of 2020

RULES Magistrate Court Rules 1992 Amendment No.85 Gazetted: 17 September 2020, Gazette No. 75 of 2020 Supreme Court of South Australia Probate Rules 2015 Amendment No. 2 Gazetted: 24 September 2020, Gazette No. 76 of 2020

REGULATIONS PROMULGATED (3 SEPTEMBER 2020 – 2 OCTOBER 2020) REGULATION NAME

REG NO.

DATE GAZETTED

Surveillance Devices (Prescribed Circumstances) Variation Regulations 2020

264 of 2020

10 September 2020, Gazette No. 73 of 2020

Motor Vehicles (Audio Visual Recordings) Variation Regulations 2020

265 of 2020

10 September 2020, Gazette No. 73 of 2020

Criminal Law Consolidation (Criminal Organisations) (Premises in Para Hills West) Variation Regulations 2020

266 of 2020

10 September 2020, Gazette No. 73 of 2020

Superannuation (Prescribed Authorities) Variation Regulations 2020

267 of 2020

17 September 2020, Gazette No. 75 of 2020

Cost of Living Concessions Regulations 2020

268 of 2020

17 September 2020, Gazette No. 75 of 2020

Fair Trading (Gift Cards) Revocation Regulations 2020

269 of 2020

17 September 2020, Gazette No. 75 of 2020

Criminal Law (Legal Representation) Regulations 2020

270 of 2020